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CJorn^U ICam i'rljflol Hihtary 


3 1924 080 340 189 

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With the Compliments of 

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The New Japanese Civil Code, as Material 

for the Study of Comparative 



In responding to the call of the Comittee of the Congress 
to deliver a lecture on Comparative Jjslw, I have, for reasons 
which will not be far to seek, taken the new Japanese Civil Code 
as the subject of my discourse. If, at the outset, I may be 
allowed to use a paradoxical expression in characterizing that 
law-book, I should say that "the East and the West, the Past 
and the Present meet in the new Japanese Civil Code." I mean 
that the codification of private law in Japan was the result of the 
great political and social revolution, which followed the opening 
of the country and the introduction of Western ideas; 
so that the Code embodies in itself both archaic and modern 
elements on the one hand, and Oriental and Occidental 
elements on the other. It is, so to speak, a connecting link 
between the Past and the Present, between the East and the 
West, and stands at the cross-roads of historical and comparative 
jurisprudence. It is, on that account, peculiarly interesting to 
scientific jurists, as supplying them with materials which few 
other systems can furnish. It will be my endeavour, in this 
lecture, to show the effect which the contact of the Western 
civilization with that of the East has produced on the civil law of 
the country, thereby illustrating some of the leading principles 
of the evolution of law by reference to the rules of the Code. 
The scope of my lecture being so wide, and the time for its 
delivery being limited, I shall confine myself to those characteristic 
features of the Code, which are not usually found in Occidental 

I. Causes of the Codification. 

In order to set forth the characteristics of the Japanese 
Civil Code, it will be useful, first of all, briefly to explain the 
causes which led to the codification, and give a short sketch of 
the history of its compilation. The causes which led to the 
reform and codification of the civil law are principally two. 

The first is to be found in the great social and political 
changes, which have taken place since the opening pf the country 
to foreign intercourse, especially since the Restoration of the 
Emperor to actual power in 1868. It was just half a century 
ago, that Commondore Perry knocked at our doors to open the 
country to foreign trade. Aroused from the deep slumber of 
centuries, we rubbed our eyes, and saw Western civilization 
confronting us, but it was some time before we were -wride awake, 
and realized the advantage of introducing it into our country. 

In a country which had remained entirely secluded for 
centuries from the rest of the world, it was quite natural, that 
distrust, which in many cases grew to be hatred, of foreigners 
should, at first, have existed among the mass of the people ; and 
that the cry of "jo-i" or "the Expulsion of foreigners" should 
have been raised among them. Many far-sighted statesmen and 
scholars, however, clearly saw the necessity of introducing 
Western civilization and of adopting whatever seemed conducive 
to the intellectual or material progress of the country, in order 
that Japan might become a member of the family of nations. 
There were others, who, while understanding very well the 
necessity of introducing Western civilization, joined the anti- 
foreign party, in order to hasten the overthrow of the Shogunate 
Government, for the expressions "Sonno-joi " or "Loyalty to the 
Emperor, and the expulsion of foreigners," although they had no 
necessary connection with one another were, at that time, adopted 

as watchwords by the party of political reform, in order to set the 
mass of the people against the Shogun's government. But, as 
soon as their object was attained, and the present Emperor was 
restored to real power, they threw off the mask and kept only 
the former half of their watch-word "Sonno" or "Loyalty to the 

The first act of the Emperor, on ascending the throne, was 
to enunciate the fundamental principles of his government in the 
form of a solemn oath, which has since then been known as " the 
Five Articles of the Imperial Oath." The Emperor declared in 
this oath, 

(i) That deliberative assemblies should be established and 

all measures of government should be decided by public 


(2) That all classes, high and low, should unite in vigorously 
carrying out the plan of the government. 

(3) Officials, civil and military, and all common people should, 
as far as possible, be allowed to fulfill their just desires, so 
that there might not be any discontent among them. 

(4) Uncivilized customs of former times should be broken 
through, and everything should be based upon the just 
and equitable principle of nature. 

(5) That knowledge should be sought for tlirovgliout the 
■tvorld, so that the welfare of the Empire might be 

This oath has been made the basis of our national policy. 
How well the Emperor kept his oath, and how unswervingly his 
government and his people have followed the wish expressed by 
their soveregin, is shown by the subsequent events of our 

The Feudal System was abolished, and all the Daimios or 
feudal lords voluntarily surrendered their fiefs to the Emperor, 
together with their powers to make laws, issue paper- currency 

and exercise both civil and criminal jurisdiction within their 
dominions. The four hereditary classes of the people, namely 
the Samurai or soldiers, farmers, artisans and merchants were 
abolished, and all could freely choose their own profession or 
calling. Officials were no longer appointed on account of birth, 
as was formerly the case, but on account of personal merits, and 
even the lowest born could aspire to become the highest official 
of the State. The family system was, as I shall show presently, 
gradually weakened, so that the individual began to take the 
place of the family as the unit of society. Schools for both sexes, 
have been established in all parts of the Empire, which are open 
to all classes without the least distinction. Higher education is 
no longer the monopoly of the Samurai and the clergy. Students 
and officials, have been yearly sent to Europe and America, to 
study different branches of art and science, or to investigate and 
report upon the methods and resources of Western civilization. 
Christianity which had been very strictly forbidden during the 
Tokugawa Shogunate, was gradually tolerated under the new 
government of the Emperor, until, at last, freedom of religions 
belief and worship was secured by Art. 28 of the Constitution 
promulgated in 1889. The introduction of steamships, railroads, 
electric telegraphs etc. completely changed the means of com- 
munication and travelling both on land and sea. The opening of 
foreign trade and the changes in commerce and industry at home, 
by the establishment of banking and other commercial firms and 
factories in differents parts of the country, brought about great 
economical revolutions among the people. The Imperial House- 
hold abolished the old ceremonial costumes, and adopted 
European dress for ceremonial occasions both for men and 
women. The men cut off their top-knots and had their hair 
dressed in Western fashion; they discarded their loose native 
dress and began to wear tight practical European dress; they 
now build their government offices, schools and other public 

buildings in European style ; they began to eat beef, the partaking 
of which had been regarded as something sacrilegious. It is 
needless to say that these political, economical and social revolu- 
tions, which extended to every department of life, occasioned the 
necessity for corresponding reforms in the laws of the country, 
which could not be met by fragmentary legislations. Sweeping 
legislation by way of codification was the only way of keeping up 
with the rapid strides, which Japan had taken during the past 
three decades. 

The second and more immediate cause of the codification of 
the civil law was the earnest desire on the part of the Japanese 
people to put an end to the existence of the extra-territorial 
jurisdiction which had been granted by earlier treaties to the 
sixteen Treaty Powers of Europe and America, and to resume 
the civil and criminal jurisdiction over the subjects and citizens 
of the Treaty Powers, residing or travelling in the countiy. At 
the time, that we first entered into commercial treaties with 
Western Powers, it was quite natural and reasonable, that they 
should demand the reservation to themselves of jurisdiction over 
their own respective subjects and citizens. This was indeed 
necessitated by the great difference between their own laws and 
institutions and those of Japan, while the habits and customs of 
the people were also quite unlike. We saw the necessity and 
justice of acceding to their demand, but, at the same time, felt 
that the existence of such a legal anomaly was a disgrace to the 
country, and wholly imcompatible with that scrupulous regard 
for the integrity of territorial sovereignty, which ought to 
characterize the intercourse of independent friendly nations. So, 
from an early date in the present reign, attempts were repeatedly 
made to revise the treaties and expunge from them the abomi- 
nable extra-territorial clause. But, every time, we were met by 
the objection that our laws were incomplete. Although as a 
matter of principle, we did not admit the justice of the foreigners' 

objection to obeying the laws of the country to which they chose 
to resort, we were obliged, in fairness, to recognize the reason- 
ableness of their objections. 

After many years of difficult diplomatic negotiations, it 
was at last agreed, that the treaties should be revised and the 
extra- territoriality should be abolished; and, at the same time, 
the Japanese government undertook to frame codes of laws and 
put then) in operation before the new treaties should go into 

The above-mentioned two causes, one internal and the 
other external, combined to make the work of codification 
one of the most urgent necessities of the time. As a preliminaiy 
step to the work of codification, a Bureau for the Investigation of 
Institutions was established in the third Year of Meiji (1870) and 
one of the fruits of the labour of that Bureau was the translation 
of the French Codes. This translation afforded the knowledge- 
thirsty Japanese ideas of Western laws for the first time, and 
had an immense influence upon subsequent legislation and 
judicial dicisions in the courts of law. In 1875, a Committee for 
the Compilation of the Civil Code was appointed for the first 
time. In 1878, a draft was submitted by this Committee to the 
Government. This draft was a close imitation of the French 
Civil Code, both in its arrangements and in its content, and was not 
adopted by the Government. In 1880, Prof Boissonade, an 
eminent French jurist, who was then a legal adviser to the 
Japanese Government, was asked to prepare a new draft, and in 
the next year, a Bureau for the Codification of the Civil Law 
was established, to which Prof Boissonade's draft was submitted 
for deliberation. The Bureau was abolished in 1886, and a 
Committee for the Investigation of Law was appointed, compos- 
ed of the members of the Genroin or the Senate and of the 
Bench, with Count Yamada, the Minister of Justice, at its head. 
This committee made its report in 1 888, and the draft was sub- 

mitted to the deliberation of the Senate and was adopted by that 
Council. On the 27th of March, 1890, under Law No. 28, 
those parts of the Code which were drafted by Prof Boissonade, 
that is, Book II, relating to " Property in General," Book III, 
relating to the " Means of Acquiring Property," Book IV, 
" Security of Rights in personam " and Book V, relating to 
" Evidence " were published. Those parts which were prepared 
by Japanese jurists, namely. Book I, relating to " Persons " and 
part of Book III, relating to " Succession " were published on 
the 1 6th of October of the same year ; and the whole Code was 
to go into operation from the 1st of January 1893. 

Thus after the arduous toil of fifteen years, Japan possessed 
a code of private law for the first time in her history. It was 
quite natural that the Code should become a topic of earnest 
consideration for all educated classes of the people. Especially 
among lawyers and politicians, a violent controversy arose regard- 
ing the merits of the new Code. Those jurists, who had studied 
English law in the Tokio University or in England or America, 
first raised their voices against the Code and demanded the post- 
ponement of the date of its going into operation, with a view to 
its complete revision. The French section of Japanese lawyers, 
on the other hand, supported the Code and insisted upon the 
necessity of its going into operation at the date originally appoint- 
ed. The German section of jurists, whose number was at that time 
comparatively small, was divided into two parties, some siding 
with the one, others joining the other. Japanese lawyer were 
thus divided into two hostile camps, and the lively discussion 
which arose among them, is known as the " Postponement 
Campaign." The arguments pro and con put forward for the 
postponement and revision of the Code were many and were of 
varying inportance. To outsiders, the campaign may have 
seemed like a sectarian conflict between the English and French 
groups of Japanese lawyers. But this struggle is eminently 

interesting to scientific observers of the general history of law, for 
it was, in reality, a contest of the Historical School with the 
School of Natural Law, resembling in many respects the famous 
controversy between Savigny and Thibaut in the beginning of the 
same century. This question contained an important issue, as to 
which theory should have a predominant influence over the 
jurisprudence and legislation of the country. 

In order to explain this interesting event in our legal history, 
I must, for a moment, stop to give an account of the state of 
legal education in Japan at that time. English law had been 
taught in the Imperial University of Tokio since 1 874 by English, 
American and Japanese teachers, and also in other law schools, 
and a great number of the graduates had, by that time, already 
filled important positions on the Bench and at the Bar as well as 
in other places, both in and out of the Government. They were 
all taught the doctrines ofBentham, Austin and Maine, and most 
of them belonged to the school of positive law. On the other hand, 
there was a law school attached to the Department of Justice, in 
which French Law was taught by Prof. Boissonade and other 
French and native teachers. There were also two or three private 
law schools in which French law was taught. The graduates of 
these schools, who also filled important positions, had been taught 
the doctrines of Natural Law. It was quite natural that the 
doctrines which lawyers had imbibed in their early days of 
studenship should have strongly influenced their views as to 
legislations in their maturer days. And thus arose two opposite 
schools among the lawyers of Japan. In 1887, just three years 
before the publication of the Civil Code, the Imperial University 
made a reform in the program of the College of Law. The 
French Law School of the Department of Justice was transferred 
to the University, and at the same time, a German Law Section 
was newly established, so that there came to be three sections in 
the College of Law, besides a fourth which is devoted to 

Political Science. This tripartite division in the University law 
education could not fail to produce an enduring effect on the 
subsequent legislation of the country. The Civil Code had be- 
come law, before the Constitution came into force in 1890, and 
,the question of the postponement of its operation had to be 
decided in the Imperial Diet. Accordingly, a bill was introduced 
at the session of 1892 in the House of Representatives to post- 
pone the operation of the Code with a view to its revision. 
After several warm debates, the bill was passed by both Houses 
of the Imperial Diet and the operation of the Code was postpon- 
ed by Law No 8. until the 31st of December 1896. Thus, the 
so-called " Postponement Campaign " resulted in the victory of 
the " Postponement Party ;" and in the following year, a 
Codification Committee was established by an Imperial Edict. 
The constitution of this Committee affords a very important clue 
for understanding the character of the new Code. The com- 
mittee, with Marquis Ito, then the prime minister, as its president, 
consisted of members of both Houses of the Diet, professors of 
the Imperial University, members of the Bench and the Bar, 
with other eminent juribts and leading representatives of 
commerce and industry. The number of the members varied 
from time to time, but throughout, care had been taken in the 
appointment of members to represent every interest in society 
and also to represent English, French and German Schools of 
Japanese lawyers. The " Postponement Campaign " was very 
fierce while it lasted, but when the question was once settled, 
both parties threw off their animosity and joined hands in the 
work of giving the nation a code which would meet the exigencies 
of the time. The appointment of the three special members to 
prepare the draft also shows a conciliatory spirit on all sides. 
Professors Tomii, Ume and myself were appointed to prepare 
the orieinal draft which was to be submitted to the delibera- 
tion of the Committee. Professor Tomii, although he had 


studied law in Paris and is docteur en droit, and thus belonged 
to the French School, sided with the " Postponement Party," and 
not only formed a remarkable exception among his comrades, 
but was one of the staunch advocate of postponement and revision. 
Professor Ume, who had studied law in Lyon and is also 
doctetir en droit, was one of the champions of the "Anti-Postpone- 
ment Party." I myself studied English law in the Inns of Court 
in London and am a member of the English Bar ; and I belonged 
to the Postponement Party. Both Prof Ume and I also studied 
law in the University of Berlin, after we had finished our courses 
in France and England respectively. Thus, it will be seen that 
two out of the three framers of the Code represented the French 
Section, but one of them belonged to the Postponement Party. 
While two belonged to the French and one to the English 
School, two of them had studied German law. 

The constitution of the Committee, especially that of the 
Drafting Committee made it clear, that they could not agree to 
take the law of any one country as an exclusive model upon 
which to frame the new Code. Prof Boissonade's Code was prin- 
cipally based upon the French Civil Code, but the framers of the 
revised Code agreed to collect the codes, statutes, and judicial re- 
ports of all civilized countries which existed in the English, 
French, Gentian or Italian Languages, besides international treaties 
which have reference to the rules of private law. They accordingly 
collected more than thirty civil codes, including many drafts, such 
as the draft of the Civil Code of New York, the draft of the 
Greman Code, the drafts of the Belgian Code, besides other codes, 
statutes, reports and treaties ; and comparing the rules or principles 
which exist in different countries, adopted whatever seemed to be 
best suited to the requirements of the country. In the original 
draft which was submitted to the deliberation of the Committee, 
an explanation was attached to each article, stating the reasons 
for the adoption of the rule. The corresponding articles or rules 


which exist in other countries as well as rules, precedents and 
customs in our own country were also cited for the consideration 
of the Committee. This method of preparing the draft gave a 
characteristic feature to the new Code. The Japanese Civil Code 
may be said to be 2. frtiit of comparative jiu-ispriidcnce. At first 
sight, it may appear that the new Code was very closely modeled 
upon the new German Civil Code ; and I have very often read 
statements to that effect. It is true that the first and second draft 
of the German Code furnished very valuable material to the drafting 
committee and had a great influence upon the deliberations of 
the Committee. But, on close examination of the principles and 
rules adopted in the Code, it will appear that they gathered mater- 
ials from all parts of the civihzed world and freely adopted rules or 
principles from the laws of any country, whenever they saw the 
advantage of doing so. In some parts, rules were adopted from 
the French Civil Code ; in others, the principles of English com- 
mon law were followed ; in others again, such laws as the Swiss 
Federal Code 'of Obligations of 1881, the new Spanish Civil Code 
of 1889, the Property Code of Montenegro, Indian Succession 
and Contract Acts or the Civil Codes of Louisiana, Lower 
Canada or the South American Republics or the draft Civil Code 
of New York, and the like have given materials for the framers 
of the Code. In January 1 896, the report of the Committee on 
Book I, " General Provisions," Book II, " Rights in rem " and 
Book III, " Rights in personam " was submitted to the Imperial 
Diet and was adopted with only a few unimportant modifications. 
In April of the same year, these three Books were promulgated 
as Law No. 89. The remaining two Books on " Family " and 
" Succession " were submitted to the Imperial Diet in May iSg8 
and adopted by both Houses with only slight modifications, and 
were promulgated as Law No. 9 in June ; and the whole Codes 
came into force on the i6th of July 1898. 

The foregoing sketch, brief as it is, of the history of the 


codification of the civil law will be sufficient to show that the 
new Japanese Civil Code is the result of the comparative study of 
laws, and offers in its turn, valuable materials for the study of 
comparative' j urisprudence. 

II. Objects of the Codification. 

I think it may be laid down as a general rule regarding the 
evolution of law, that a comprehensive legislation generally fol- 
loius a great social revolution. If laws are social phenomena, it is 
quite natural that social changes should always bring with them 
corresponding changes in the laws of the country. The legal 
history of all nations, either ancient or modern, shows that the 
objects sought to be obtained by codification fall under one of the 
following four heads ; namely. Pacification, Innovation, Unification 
and Simplification. 

(i) Sometimes, codification takes place after a great social 
disturbance in order /<? restore pence and main! ain order by 
means of comprehensive legislation. This was true of the 
ancient codes of Draco and Solon in Greece, the Law of 
Twelve Tables in Rome, and the codifications in China 
since the Han Dynasty, where it was customary for the 
founder of every dynasty to publish a new code of laws 
after he had gained the imperial power by force of arms. 
In Japan, the Codes of the Hojo and the Tokugawa 
belong to this class. 

(2) Laws are often codified either to bring about a social 
reform, or to adjust the laiv to the requirements of the 
nezu state of things, which has been brought about by 
social reform. To this class belong most of the codes, 
which have been promulgated in Japan since the Res- 
toration of 1868. 

(3) Very often codification takes place with a view to the 


unification of different local latvs and customs, so that the 
country may be governed by a uniform code of laws. 
One of the objects of the Code Napoleon, the Italian Civil 
Code of 1865, and the new German Imperial Codes was, in 
each case, the unification of the laws of the country. It was 
the principal object of the first Japanese Criminal Code of 
1 870, which was published soon after the Restoration to 
establish unity in criminal law throughout the Empire, by 
abolishing the particular laws which existed within the 
jurisdictions of the Daimios. 
(4) Simplification of law by means of logical arrangement or 
consolidation of legal rules constitutes the most usual 
motive for codification in modern states. 
Now, the majority of codifications, except sometimes those 
coming under the fourth class just mentioned, take place after 
great political or social revolutions, in consequence of which, 
pacification, innovation, unification or simplification becomes ne- 
cessary. The history of codification in Japan amply exempli- 
fies the above statement. The promulgation of the Taiho Codes 
of 702 A. D. was the result of the great political and social revolu- 
tion, which followed the introduction of Chinese civilization into 
the country. The next great codification, the framing of the 
J5yei Shikimoku in 1232 A. D. under the Hojo Regency, was 
necessitated by the great political and social changes, which had 
taken place since the establishment of the Feudal System under 
the military government of the Shoguns. The new Japanese 
Civil Code is, as I have explained above, the result of the revolu- 
tion which followed the opening of the country to foreign inter- 
coure. Thus, each of the three great epochs in Japanese history, 
the introduction of Chinese civilisation, the establishment of 
Feudalism and the introduction of Western civilization, lias been 
follozved by codification. The chief object of the Taiho Code, be- 
longing to the first period, was Innovation ; that of the Joyei 


Shikimoku, belonging to the second period, was Pacification ; while 
the framing of the new Civil Code had for its objects Innovation 
and Unification as well as Simplification. 

III. Methods of Comparative Jurisprudence. 

Looked at from another point of view, the new Japanese Civil 
Code may be taken as an illustration of the effect which the con- 
tact of Western with Eastern civilization has produced on the laws 
and institutions of the country. In this respect, I must first say 
a few words as to the methods, of Comparative Jurisprudence. 
Hitherto, there have been three methods of comparison in 
vogue. One of them takes the lazv of a particular state as the 
unit of comparison, and comparing with it the laws of different 
states, finds similarities and divergencies among them, and 
deduces from them certain principles of law. This is the method 
generally adopted by jurists. In France, for instance, where 
comparative law is studied with greatest zeal, valuable materials 
for this method of investigation are furnished by the publications 
of the laws of different countries in the " Bulletin " and 
" Annuaire " of the " Societe de legislation comparee " and by 
the numerous translations of foreign codes by Foucher, Antoine 
St. Joseph, Lehr, Dareste, Grasserie, Leve, Tu'rrel, Prudhomme, 
Lepelletier and other eminent jurists. 

There are others, who, perceiving that there are common 
features in the laws of each race, take a wider basis for their in- 
vestigation and make the laws of particular races the units of 
comparison, and compare the one with the other. 

There are others again, who take a still wider basis, and 
compare legal phenomena of different peoples without regard to 
nationality or race. 

Of these three methods, the first may compare, for instance. 


English law with French, the second Germanic laws with 
Slavonic laws, while the third takes up, perhaps, the marriage 
laws and customs of European nations, American Indians, 
African negroes, Australians and Chinese. 

All these three methods of comparison, which I have 
mentioned above, are useful and legitimate methods of investiga- 
ting the principles of law ; and none of them can be rejected 
to the exclusive adoption of the other. But I think another 
method can be added to the list,' which, though not hitherto 
employed, may be very advantageously adopted in the investiga- 
tions of general principles of law. I mean a method which takes 
for the unit of comparison a certain group of laws having 
a common lineage or descent. If we examine the laws of 
different countries which have made a certain progress in 
civilization, we shall find that the law of each country consists 
of tzuo elements; namely, the indigenous element and the 
foreign element; and except in uncivilized or barbarous com- 1 
munities which have no intellectual intercourse with other! 
countries, instances are very rare, in which the law of any country 
is found consisting exclusively of indigenous elements. With 
the progress of means of communication and the consequent 
increase of intercourse among different peoples, the exchange, not 
only of material, but also of intellectual products becomes greater; 
and in regard to law, it may be laid down as a general rule that 
the higher the community stands in the scale of civilization, the 
greater is the proportion of the foreign to the indigenous element. 
This comes from what is called the reception or adoption of 
foreign laws. 

Now, when the rules or principles of law of one country are 
adopted in another, there arises a s6rt of kinship between the 
laws of those two countries. One is descended from the other, 
and the relationship, as it zvere, of ancestor and descendant is 
created betzveen them. The old law which served as a model or 


source of the new law may be called the "Parental Law" or 
"Mother-law" in relation to the new, which stands in a filial 
relation to the parental law. 

The law of one country may be adopted in other cofintries 
directly, as Roman law was received in Germany, or indirectly, 
that is, it may be first adopted in one country, and then through 
that country, it may be received in the third, as European law, 
which has first been received in Japan, is now being introduced 
through her in China and Corea. Or again, the law of a mother 
country may be extended to her colonies or dependencies, as in 
the case with English law in British colonies. 

In this way, the laws of all civilized countries may be divided 
into several groups, each comprising laws of many countries, but 
having common features and characteristics owing to their com' 
mon origin. These different groups may be compared one with 
another, in order to find out uniformities and divergencies among 
them, and thus establish general principles of law. This method 
of comparative study of law, which may be called the Genealogi- 
cal MetJiod, to distinguish it from the other three, has the 
advantage, among many others, of combining the historical with 
the comparative method. 

IV. Great Families of Law. 

If, in order to take the Genealogical Method of comparison, 
we classify the laws existing at present in different parts of the 
world, we shall find that there are at least seven Great Families 
of Laws ; namely, (i) the Family of Chinese Law, (2) the Family 
of Hindu Law, (3) the Family of Mohamedan Law, (4) the Family 
of Roman Law, (5) the Family of Germanic Law, (6) the Family 
of Slavonic Law, and (7) the Family of English Law. I have called 
these groups " the Great Families of Lazvs," because this 


classification is not meant to be exhaustive or exclusive. There 
are many smaller branches of law, not belonging to any of the 
above mentioned Families, which are, none the less, very import- 
ant for the Genealogical Method of comparative study, but for 
the purpose of the present lecture, they need not be mentioned 

V. The Position of the Japanese Civil Code 
among Legal Systems of the World. 

I have been at some length in explaining this method of 
comparative jurisprudence, in order to show the position of the 
new Japanese Civil Code in the general legal history of the 
world. Since the first introduction of Chinese civilization into our 
country, and the consequent Reform of the Taika Era (646 
A.D.), the work of which was completed by the publication of 
the famous Taiho-Codes in 701 A. D., Japanese lazv has belong- 
ed to the Family of Chinese Laiu for more than one thousand 
six hundred years ; and notwithstanding many great changes in 
the laws and institutions of the country, which have taken place, 
since that time, the basis of Japanese laws and institutions has 
always been Chinese moral philosophy, together with the custom 
of Ancestor-worship and the Feudal system. 

The Criminal Code (Shin-ritsu-koryd) which was published 
in 1870, three years after the Restoration of 1868, was modeled 
upon the Chinese Codes of Tang, Min, and Shin Dynasty with 
certain modifications suggested by old Japanese laws. Only three 
years later, that code was revised, and a new code was published 
under the title of the Revised Criminal Code (Kaitei-Ritsurei). 
In the framing of that new Code, some European codes, 
especially the French, were consulted and adopted to a certain 
extent. Now, these two codes mark the transition period in the 

history of Japanese law. The former was the last in the Chinese, 
and the latter the first in the European, system of legislation. 
The Japanese law was at that time rapidly passing _/rt>;« the 
Family of Chinese lazu to the Family of European lazus. 

From the beginning of the present reign, the Imperial 
government was very active in making laws to meet the exigen- 
cies of the new state of things. But finding that such fragmen- 
tary legislation could not keep pace with the rapid progress of 
the nation and meet the requirements of the changing circum- 
stances, the Daijokwan, or the Great Council of State, which was 
then the supreme legislature, issued a Law (No. 103 in the 
Eighth year of Meiji, 1875) which provided in art. 3, that judges 
should decide civil cases according to the express provisions of 
written law, and in cases where there was no such written law, 
according to custom. In the absence of both written and cus- 
tomary laws, they Were to decide according to the principles of 
reason and justice. This law flung wide open the door for the 
ingress of foreign law, and marks an epoch in Japanese legal 
j history. Now, by this time, translations of the French Codes 
I and other law books had appeared, and there were some judges 
on the Bench, though comparatively few at that time, who had 
studied English or French law. The rapidly changing circum- 
stances of Japanese society brought many cases before the court, 
for which there were no express rules, written or customary, and 
the judges naturally sought to find out " the principles of reason 
and justice" in Western jurisprudence. The older members of 
the Bench, who had not been systematically taught in Western 
jurisprudence, consulted the translations of the French and other 
European Codes and text books, while the younger judges who 
had received systematic legal education in the Universities, 
either at home or abroad, and whose number increased from 
year to year, consulted Western Codes, statute books, law re- 
ports, and juridical treatises, and freely applied the principles of 


Occidental jurisprudence, which in their opinion, were conform- 
able to reason and justice. Blackstone, Kent, Pollock, Anson, 
Langdel, Windscheid, Dernburg, Mourlon, Baudry-Lacantinerie 
and other text books and the numerous commentaries on Europ- 
ean Codes, statute books and law reports were looked upon as 
repositories of just and reasonable principles and supplied neces- 
sary data for their judgements. In this manner. Occidental 
jurisprudence entered our country, not only indirectly through 
the University and other law colleges, but also directly through 
the Bench and the Bar. 

The above law, bold as it was, was only meant to be a 
temporary measure to supply the immediate wants of the chang- 
ing society, until a complete and systematic code should have 
been compiled. In the meantime, the work of codification had 
been steadily proceeding, and resulted in the promulgation of the 
Criminal Code and the Code of Criminal Procedure in 1880, the 
Revised Code of Criminal Procedure, and the Code of Civil 
Procedure in 1890, the new Civil Code in 1896 and 1898, and 
Commercial Code in 1899. 

What I have said above, will suffice to show that the new 
Japanese Civil Code stands in a filial relation to the European 
systems, and with the introduction of Western civilization, 
the Japanese civil laiv passed from tJie Chinese Family to the 
Roman Family of lazv. 

VI. The Publication of the Code. 

One of the most remarkable changes which the introduction 
of Western jurisprudence produced in Japan was the change in 
the conception of law. Previous to the Restoration of 1 868, 
there was no idea that publication was essential to law. On 
the contrary, during the time of the Tokugawa Shogunate, most 


laws, especially the criminal code, were kept in strict secrecy. 
They were all in manuscript and were neither allowed to be print- 
ed nor published ; and none but the judges and officials who 
were charged with the duty of carrying the rules into effect were 
allowed the perusal of the codes and the records of judicial pre- 

The famous Criminal Code of the Tokugawa Shogunate, 
commonly known as the " Hyakka-j6 " or " The Hundred 
Articles " bears the following injunction at the end : — 

" The above rules have been settled with His Highness' 
gracious sanction, and nobody except the magistrates shall be 
allowed to peruse them." The subsequent compilation, called 
" Kwajo-rui-ten " contains the same injunction with' the following 
addition : — 

" Moreover, it is forever forbidden to make extracts from 
this Code, even of one article thereof" In 1841, thirteen au- 
thentic manuscript copies of the Code were made, and all the other 
copies and extracts which the clerks had made for their own use 
were ordered to be produced and burnt. One Ono Gonnojo and 
his son were severely punished for publishing a book which con- 
tained the " Hundred Articles " of the Code. An owner of a 
certain circulating library who had a manuscript book, showing 
the days on which the magistrates transacted business, or the "'dies 
fasti'' and " nefasti" of the judicial court, was punished with 
banishment from his place of abode. These and many other like 
cases which occured during the Tokugawa Shogunate show in 
what strict secrecy some parts of the laws were kept in those 

The Taiho Code of 702, Joyei-Shikimoku of 1232 and other 
old laws before the time of the Tokugawa Shogunate were printed 
and distributed among officials of the Imperial or the Shogunate 
Government, the governours of provinces, chiefs of clans etc., but 
they were not published in the sense in which laws are published 


in the present day. The Joyei-Shikimoku, which was the funda- 
mental Code during the time of the Hojo-Regency, concludes with 
an oath by the councilors, to the effect, that they would render 
justice with impartiality, and according to reason, and in case of 
disobedience to the rules and principles set forth in the Code, 
they would incur the wrath and the punishment of the gods. 
These laws were all commands adressed to the officials, not to the 
people. They were rules for the conduct of officials, not rules 
of conduct for the citizen. It was upon officials only, that law 
imposed the obligation to observe the rules of law in their relation 
to the people, whether they acted in administrative or in judicial 
capacity. The people were merely passive objects of the law, and 
it was their part implicitly to obey the commands of officials. 
Austin and others, who define law as a command of the lawgiver, 
mean thereby a command addressed to, and imposing obligations 
upon, the citizen. But in Japan, this conception tvas only reached 
after the introduction of Occidental jurisprudence into the 
country. Two legislative acts in the beginning of the present 
reign very clearly show this transition in the nature of law. The 
publication of the new Criminal Code " Shinritsu Koryo " in the 
3rd year of Meiji marks the first step in the revolution of the legal 
idea. The policy of the Tokugawa Government was based upon 
the famous Chinese maxim " Let people abide by, but not be 
apprised of, the law." (^pT'^^^- 'f»Pr'ffi^n;^)and went so 
far as to keep the law in strict secrecy. Although the first 
Criminal Code was modeled upon Chinese Codes, the ne^ Im- 
perial Government took another and wiser Chinese maxim " To 
kill without previous instruction is cruetly " (^t5:rfn?^)S-&)) ^nd 
caused the new Code to be printed and published. I have 
said that the first Criminal Code was based upon the Chinese 
system and in the amended Code, the French Criminal Code was 
consulted. The comparison of the Imperial Proclamations which 
form the preambles to these two Codes is very interesting, as 


showing a great change in the conception of law, that took place 
during the three years which intervened between the first and 
the second Code. In the Imperial Proclamation which is prefixed 
to the first Code, His Majesty enjoins his officials to observe the 
rules of the Code ; while in the Imperial Proclamation attached 
to the second Code, it is his subjects as zvell as his officials that 
are so commanded. In the same year with the publication of the 
second Code, that is 1873, a law was enacted (Ordinance 68. of 
6th year of Meiji) in which it was declared that " henceforth 
every law shall, on its promulgation, be posted up in convenient 
places during thirty days for the information of the people." 
Since that time, several laws have been passed, in which the same 
principle is carried farther, and now the publication which is made 
in the Official Gazette has become an essential step in giving 
them binding force. 

We have now reached the third stage in the evolution of the 
idea of law. At present, according to Art. 37 of the Constitution, 
every law requires the consent of both Houses of the Imperial 
Diet. Of the five Codes, which have been promulgated, the new 
Civil Code was the first which became law under the new 
constitutional government, and therefore, with the consent of the 

From what I have said above, it will be seen that there are 
three stages observable in the development of the idea of law. 
At first, publication was not essential to the binding force of the 
law. Laws were commands addressed to the magistrates, not 
to the people. The people were merely the passive object of the 
operation of lazvs. Next comes an epoch, when the laws become 
commands addressed to the people, and publication forms an 
essential element of the law. People become the direct object 
of the law, and a party, as it were, to its operation. In the third 
and final stage, the people not only become 3. party to the opera- 
tion of the law, but a party to the making of it through their 



VII. The Arrangement of the Code. 

The Civil Code drafted by Prof. Boissonade, which became 
law but never went into operation, was divided into the following 
five books ; namely, Book I, " Persons "; Book II, " Property 
in General" ; Book III, " Means of Acquiring Property" ; Book 
IV, " Security of Rights in rem"; and Book V, " Evidence." 
The objections which were raised against this arrangement were 
many, some from scientific, others from practical, points of view; 
but it is needless to mention them here. Some will appear when 
I come to compare it with the arrangement of the new Code. 
The framers of the latter did not follow the arrangement of the 
first Code, nor did they adopt the classifications of the French 
or other codes based upon the Institutes of Justinian. 

The new Civil Code is divided into the following five Books, 
according to the plan which German jurists call " Pandekten- 
System"; namely. Book I, " General Provisions "; Book II, 
" Rights in rem"; Book III, " Rights in personam"; Book IV, 
" Family " and Book V, " Succession." One of the reasons for 
rejecting the so-called " Institutionen- System," and adopting the 
" Pandekten-System " was that the latter system of arrangement 
was peculiarly suited to the present state of law in Japan. 

The first Code, following the French Code, had no distinct 
portion assigned to general rules applicable to all other parts. 
This system rendered frequent repetition of the same rules neces- 
sary in different parts of the Code, thereby making the whole 
work a voluminous code, containing 1762 articles; while the 
new Code, following the Saxon Civil Code and the then draft of the 
German Civil Code, placed at the beginning all the general rules, 
relating to persons as subjects of rights, to things as objects of 

rights, and to facts and events by which rights are acquired, lost 
or transferred This method of arrangement avoided unnecessary- 
repetitions and made the body of the law succinct ; the new Code 
containing only 1 146 articles. 

The new Code, besides having a Book devoted to general 
provisions common to all legal relations, has distinct places set 
apart for the laws of Family and Succession. In the Code drafted 
by Prof Boissonard the law of family was included in Book I 
relating to " Persons," and the law of succession formed a part 
of Book III relating to the " Means af Acquiring Property." 
Now, this arrangement formed one of the strong reasons for 
postponing the operation of the first Code and reconstructing it 
on an entirely new basis. 

Before the Restoration it was the family, and not the indi- 
vidual, that formed the unit of society. The family was then a 
corporation ; and as a general rule, only the house-head could 
hold public office or private property, or transact business, all 
other members of the family being dependent upon him.' But 
since the Restoration, this state of things has changed, and the 
disintegration of the family is rapidly going on. The family 
has now ceased to be a corporation in the eyes of law, and the 
dependent members of the family or the house-members can 
hold office or property or transact business equally with its head. 
Japanese society is now passing /ro7/i the stage of family-7init to 
the stage of individual-unit. But still, the family occupies an 
important place in the social life of the people, and there are 
many rules which are peculiar to their family relations, and which 
ought, on that account, to be grouped together and separated 
from the rules relating to persons regarded simply as individuals. 
The " Pandekten-System " is peculiarly suited to this transient 
state of society, for it provides for the rules relating to persons in 
their capacity as individuals or members of a society in the General 
Part, and sets apart a distinct place for those rules which relate 


to person in their capacity as members of a family. In civilized 
societies, the rules which regard men as individuals belong to 
. general law, while those which regard men in their family rela- 
tions belong to particular law. But in less civilized communities, 
the case is just the reverse ; the family laiv may be said to 
form the general latv, the law relating to persons in their in- 
dividual capacity falling under the category of particular laiv. 
Japan is now in a transition stage ; so that the placing of the rules 
relating to individuals in the general part, and the rules relating 
to family relations in the particular part of the Code is, not only 
logically correct, but is especially suited to the present state of 
the Japan law. 

As to the place of the Succession Law in the Code, strong 
objection was raised against the arrangement of Prof Boissonade 
which put it in Book III, under the head of " Means of Acquiring 
Property. In Japan, as I shall show presently, succession can- 
not, at least as regards the most usual kind of it, be regarded as a 
mode of acquiring property. 

Comparative study of succession laws of different peoples in 
different degrees of civilization, shows that there are three stages 
in the evolution of this branch of law. In the first and earliest 
stage, succession is regarded as the mode of perpetuating the 
zvorship of ancestors ; next comes the time when it is regarded 
as a mode of succeedirtg to the status of deceased persons ; and 
it is only in the last stage, that succession becomes a mode of 
acquiring property. 

Now in Japan, until recently, as the family was a corporation 
the only person who could hold property was the head of a house. 
Consequently the only kind of succession which was then 
recognized by law was " Katoku Sozoku " or the succession to 
the headship of a house, which was the succession to status, and 
the house-property descended to the heir as an appendage to the 
status of the house-headship. It is only after house-members 


were allowed to have independent property, that succession 
which can properly be said to be succession to property began 
to be recognized. So, there are, at present, two kinds of 
succession, status-succession and property-succession existing 
side by side. The status-succession cannot be put under the 
category of the law of property, nor can the property-succession 
be put under the law of persons. The arrangement of the 
" Pandekten-System," which devotes a particurar Book to succes- 
sion law at the end of the Code is peculiarly suited to this state of 
law, and recommended itself to the framers of the new Code in 
preference to the classification adopted by Prof. Boissonade. 

VIII. The Introduction of the Notion of Right. 

It will be seen, from what I have stated above, that the 
classification of rules in the new Civil Code is made upon the 
basis oipriininary distinctions regarding rights. But the notion of 
right did not originally exist in Japan, before the introduction of 
Western jurisprudence. Many writers assume that right is coeval 
with law, and law and right are only two terms expressing the 
same notion from different points of view. Some even go so far 
as to affirm, that right is anterior to law, and the latter only exists 
for the assurance or pi-otection of the former. In Japan, however, 
the idea of right did not exist so long as her laws belonged to the 
Chinese Family. There was indeed the notion of duty or obliga- 
tion, but neither the notion of right nor the word for it existed 
either in Japanese or Chinese. The nearest approach to it in 
Japanese was perhaps " <5z<« " which means "share" or "por- 
tion." This word was frequently used to express the share or 
part which a person had in society and which he expected that 
society would recognize as his due. But this word was not quite 
definite in its meaning, and was more often used in a contrary 

sense, expressing a person's duty, or sometimes the part or limit 
which he ought not to exceed. So, when the notion of right was 
first introduced into Japan, there was no fit word to translate it, 
and a new word had to be coined to express this novel idea. 
The late Dr. Tsuda who had been sent to Holland by the Sho- 
gunate Government to study law in the University of Leyden, on 
his return to Japan published a book entitled " A Treatise on 
Western Public Law " in i86S, the year of the Restoration. In 
this book he used the new word " keit-7-i" for right, which he 
coined by combining the words " ken " or " fozvcr " and " ri" 
or " interest." This word has since been received to express 
the notion of right. Sir John Lubbock in his book " On the 
Origine of Civilization " (ch. VIII) says that lower races are 
" deficient in the idea of right, though familiar with that of law," 
Sir Heniy Maine says that "jus " among Roman lawyers generally 
meant not " a right " but " law;" and that Romans " constructed 
their memorable system without the help of the conceptson of 
legal right." I think it may be laid down as a general rule of the 
evolution of law, that /azvs from beittg the rules of duty become the 
ritles of right. Early lazus impose duty but do not confer right. 
But in the course of time, men begin to realize, that the benefit 
which results to any one on account of duty imposed upon an- 
other, is of greater importance than the duty itself; so that right 
which was at first only the secondary notion and nothing more 
than the reflection of duty, began to be regarded as the primary 
object of law. This change in the conception of law took place 
in Japan within the last forty years, and resulted in the classifica- 
tion of the rules of the Civil Code on the basis of right. 

IX The Legal Position of Woman. 

With reference to Book I of the Code, which relates to 
" General Provisions," I will only touch upon the subjects of the 


Legal Position of Woman and that of Foreigners ; for these are 
the two points where the Code has made greatest changes in that 
part of the law. I will first speak of woman. 

Three periods may be distinguished in the history of Japan, 
as to the legal position of woman ; the first, corresponding to 
the period during which our national law consisted solely of 
indigenous elements ; the second, when Japanese law belonged to 
the Chinese Family of Law ; and the tliird dating from the time 
when our law passed from the Chuiese to the European Family 
of Law. 

The first period extends from the beginning of our history 
to the introduction of Chinese civilization. During this period, 
women seem to have occupied a higher place than in later times, 
filling positions of importance and honor in state, religion and 
household. Perhaps, the higher position, which women occupied 
during the early period of our history, was due partly to the 
primitive simplicity and the absence of artificial doctrines, which 
later on assigned a subordinate position to women. The first 
Imperial Ancestor and the central figure in national worship is a 
goddess " Amaterasu O-mi-Kami " or the " Great Goddess of 
the Celestial Light." There was no law to prevent female mem- 
bers of the Imperial Family from ascending the throne, and there 
have been many Empresses who ruled the Empire. The Empress 
Jingo invaded and conquered Corea at the head of a large 

With the conquest and subjugation of Corea by this 
" Empress of God-like Exploit " begins the second period in 
the history of the legal position of woman in Japan ; for from this 
time, Chinese civilization began to enter Japan, first through 
Corea, and afterward from China directly. It was chiefly the 
doctrines of Chinese moral philosophy that changed the primitive 
state of comparative freedom and independence of woman, and 
placed her in an abnormally inferior position. The Chinese 


doctri?ie of the perpetual obedience of tvoman to the other sex 
is expressed in the precept of " the three obediences" (Ht3t)^ 
" obedience, while yet unmarried, to a father ; obedience, when 
married, to a husband ; obedience, when widowed, to a son." 

It is curious to note, by the way, that an exact counterpart 
of this doctrine of three obediences is to be found in Hindoo 
Law. In one place Manu says " Day and night women must 
be kept in dependence by the males of their family" (Manu IX. 2. 
Buehler's transl.); and in another place " In childhood, a female 
must be subject to her father ; in youth, to her husband ; when 
her Lord is dead, to her sons." (V. 148) 

Buddhism and Feudalism contributed to the keeping of wo- 
man in a state of dependence. Buddhism regards woman as an 
unclean creature, a temptation or snare to virtue and an obstacle 
to peace and holiness. Feudalism, which disdained anything 
effeminate, also regarded woman in the light of a temptation to 
courage and faithful performance of duty, and, although she was 
treated with kindness and consideration far above that received in 
other Asiatic countries, she did not command that romantic 
homage which the gallant knights of Mediaeval Europe paid to 
the other sex. Prof. Chamberlain, one of the best authorities on 
Japan, writes: — "Japanese feudalism — despite its general similarity 
to the feudalism of the West — knew nothing of gallantry. A 
Japanese knight performed his valiant deeds for no such fanciful 
re ward, as a lady's smile. He performed them out of loyalty to 
his lord, or filial piety towards the memory of his papa." 

Thus, these three factors, Chinese philosophy. Buddhism and 
Feudalism, combined to place the Japanese woman in a state of 
dependence during the second period. She could not become 
the head of a house ; she could not hold property nor contract 
in her own name ; she could not become a guardian of her own 
child ; she could not adopt a child in her own name ; in short, 
she had no independent status and was excluded from the 


enjoyment or exercise of almost all rights. 

But in the third period, during which European civilization 
has been introduced, female education has spread throughout the 
country. Western jurisprudence has superseded Chinese, and 
Japanese law has become a member of the European Family of 
Laws, a great revolution has come over the social and legal posi- 
tion of woman. This reform was consummated by the publication 
of the new Civil Code. This Code " created the new legal wo- 
man " as an able writer on Japan has expressed it. (Clement's 
Modern Japan, ch. XIII.) It proceeds upon the principle of 
equality of the sexes, and makes no distinction between man 
and woman in their enjoyment and exercise of private rights, so 
long as the woman remains single. She may now become the 
head of a house, in which case all house-members, whether male 
or female, — even her husband when she is married — come under 
her power and are legally dependent upon her. She may exer- 
cise parental authority over her own child, if her husband be 
dead. She may adopt children either alone, when she is single 
or a widow, or in conjunction with her husband, when married. 
She may make any contract or acquire or dispose of property in 
her own name. In short, she may be a party to any legal trans- 
actions, as long as she remains feme sole. When she is married, 
her state of coverture obliges her to obtain the permission of her 
husband in doing certain acts, which may involve grave conse- 
quences upon their conjugal life; such as contracting debt, acquisi- 
tion or loss of immovables or valuable moveables, instituting legal 
proceedings, accepting or renouncing succession, entering into 
contract of personal service etc. Even in regard to these acts, she 
can not be considered as laboring under legal incapacity, for when 
she does these acts without her husband's permission, they are 
not void, but only voidable, that is, liable to be annulled by her 
husband (Civil Code Art. 14.). With her husband's permission, 
she may also engage in business, in which case, she is considered 


in regard thereto as an independent person. (Civil Code Art. 
1 5 .). That the Civil Code places husband and wife on an equal 
footing, except when consideration for their common domestic 
life requires some modifications, may be seen from the provision 
of Art. 17, which allows a wife to do the acts above mentioned 
without the permission of her husband " when the interests of the 
husband and wife conflict," and also from the provision of Art. 
790 in which it is stipulated that "a husband and wife are mutual- 
ly bound to support and maintain each other." 

The great revolution in the legal position of woman which 
the new Civil Code brought about is nowhere so clearly seen as 
in its regulations relating to \hs. property of married tvoinen. 

The laws relating to married women's property are different 
in different countries, and varies with the degree of civilization 
attained ; but broadly, they may be grouped into the following 
four systems : — 

(i) System of Conjugal Unity. — In those systems of law 
which regard man and wife as one person, or in which 
the wife's personality is merged in that of the husband, 
whatever the bride possesses at the time of marriage 
becomes the property of the husband, as was the case in 
the English Common Law, or under the doctrine of 
Maims in the early Roman Law, or that of Miind in the 
early Germanic Law. 

(2) System of Dowry. — Another system sets aside a part, at 
least, of the bride's fortune as a common conjugal fund, 
the management of which belongs to the husband, as was 
the case at one period under Roman Law, and under the 
Code Civil, and as is now practiced in the South of 

(3) ' System of General Community of Conjugal Property. — 

This system exists under the Code Civil side by side with 
the dotal system, principally in the northern part of 



(4) System of Separate Property. — Under this system 

marriage makes no change whatever in the property 

rights . of the bride, as is the case in England since the 

Married Woman's Property Act of 1882, and in many 

States of the United States. 

Broadly speaking, the usual process in the evolution of the 

law of conjugal -property is in the order which I have stated 

above, the system of unity corresponding to the lowest, and the 

system of separate property to the highest, scale of civilization. 

But in this respect, the compilers of the new Code have taken a 

decided step, and leaped, at one bound, from the system of 

complete merger of wife's property in that of the husband to 

the system of separate property. According to the Code (Art. 

793 — 807), persons who are about to marry- are allowed to make 

any contract with regard to their connjugal property, which will be 

binding upon them and can be set up against a third person, if 

registered before the registration of the marriage. If such 

contract be not made between them, their relations in regard to 

property are governed by the general rules of conjugal property, 

which, among others, lays down the fundamental rule, that the 

property belonging to a wife at the time of marriage or acquired 

after marriage in her own name, shall be her separate property/ 

(Civil Code Art. 807). 

The reform in the Law of Divorce, which the new Civil 
Code made, also marks a great advance as regards the legal 
position of woman. During the second period, while the Japan- 
ese law belonged to the Chinese Family, the law of divorce 
was based upon the Chinese doctrine of " the Seven Grounds of 
Divorce " (-t;^) which are (i) sterility, (2) lewdness, (3) 
disobedience to father-in-law or mother-in-law, (4) loquacity, 
(5) larceny, (6) jealousy, and (7) bad disease. These grounds 
were adopted in the " House Law " (Koryo) of the Taiho Code. 


But it must be observed that these grounds were not lemitative, 
as in the case of modern legislation. They are only mentioned 
^^ just grounds for abandoning a zvife, or in some cases such 
as barrenness, adultery or hereditary disease, as a moral obliga- 
tion which a husband owes to his ancestor to abandon the wife, 
because the object of marriage was the perpetuation of ancestor- 
worship, and barrenness may cause the failure of heir, 
adultery the confusion, and hereditary disease the pullution, 
of ancestral blood. (See my work on " Ancestorworship 
and Japanese Law "). Practically, a wife could be divorced 
at the pleasure of her husband, under any slight or flimsy 
pretext, the most usual being that " She does not conform 
to the usage of the family." It must be further observed that 
divorce during this period meant only the abandonment of the 
wife on the part of the husband. The wife had no legal right to 
demand divorce from her husband on any ground. Divorce, 
therefore, was not a bilateral, nor even a reciprocal, act. It was 
an unilateral act of the husband. To bring an action against 
the husband, or to give information of a crime against him was 
itself considered a grave offence ; and so a wife could not demand 
divorce in the court of law. Divorce was the privilege of the 
husband only, as in the Mosaic and other primitive laws. 

But this state of things has changed since the Japanese law 
passed from the Chinese and entered the European Family of 
Laws. In the 6th year of Meiji (1873) the following Law (No. 
162) was enacted, which, for the first time, allowed the wife to 
bring an action of divorce against the husband : — " Whereas 
it has frequentry happened that a wife asked divorce from 
her husband on account of unavoidable circumstances, to 
which the latter unreasonably withheld his consent for many 
years, thereby causing her to lose the opportunity of second 
marriage, and whereas this is an injury to her right of freedom, 
it shall be henceforth allowed to the wife to bring an action 


ao-ainst her husband, with the assistance of her father, brother 
or other relative." This law may be considered a revolution in 
the legal position of woman. The new Civil Code went a step 
farther and placed husband and wife on an equal footing in this 
respect. According to the Code two kinds of divorce are re- 
cognized, consensual zr\d judicial, the former being effected by- 
arrangement of parties, while the latter is granted by a court of 
law on several grounds specified in Art. 813 of the Code. The 
grounds for judicial divorce include, inter alia, bigamy, adultery, 
sentence for an offence of grave nature, such cruel treatment 
or gross insult as make living together unbearable, desertion 
with evil intent, cruel treatment or gross insult of or by lineal 
ascendant, uncertainty, for a period of three years or more, whe- 
ther the consort is alive or dead. Consensual divorce requiring 
the consent of both parties is a bilateral act, whereas divorce 
during the second period was an unilateral act, which took place 
at the will of the husband who gave her a " letter of divorce " 
formulated, as a custom, in three lines and a half " mikudari-han," 
stating that he gave her a dismissal, and nothing should hence- 
forth stand in the way of her marrying again. As to the judicial 
divorce, either party to marriage can claim divorce from the other, 
if any of the grounds specified by law exists, so that husband and 
wife are now placed on an equal footing in this respect. 

It will appear from the foregoing rough sketch of the three 
periods in the history of the law relating to the position of woman, 
that during the first period, while Shintoism was the only form 
of worship, woman held a higher place than in the second 
period, when Confucianism, combined with Buddhism and Feu- 
dalism held down woman in a state of subjection ; while in the 
third era, a great revolution has been made in the position of 
women, and equality with men as far as their private rights are 
concerned, is vouchsafed to them under the new Civil Codes. 

X. The Status of Foreigners. 

The possible forms, which the law of any country relating to 
the position of foreigners may assume, or the possible stages 
through which it may pass, may be arranged, by the broad 
generalization of comparative jurisprudence, under the four 
following heads : — 
(i) Laws based upon the Principle of Enmity. 

The laws of almost all barbarous peoples are based upon the 
principle that all foreigners are enemies, and consequently have 
no right whatever. Even after they cease to regard foreigners 
as enemies, they view their own laws as exclusively national, 
that is to say, they are applicable only to their own countrymen. 
Foreigners are, therefore, outlaws, and are placed outside the 
protection of the law. 

(2) Laws based upon the Principle of Inferiority. 

With the advance of civilization, especially with the progress 
of commerce, foreigners are no longer regarded as enemies, but 
from disdain for foreigners, or from national egoism, they are 
placed in inferior position as regards the enjoyment of their 
private rights. Sometimes the enjoyment of many rights is 
totally denied them, or sometimes capricious limitations are placed 
upon their legal capacities. In this stage, foreigners enjoy 
private rights, but in a limited degree only. 

(3) Laws based upon the Principle of Reciprocity. 

Some countries make the conditions of foreigners dependent 
upon the treatment which their own people receive in other 
countries ; and allow foreigners the enjoyment of their rights only 
so far as the countries of those foreigners allow their own people 
the same rights. This principle of reciprocity is adopted in 
France (Code Civil. Art. 11,), Austria (Das allg. buergerl, 
Gesetzbuch § 33.), Sweden, Norway, Servia and other countries. 

(4) Laws based upon the Principle of Equality. 

This is the most liberal and most advanced system of law- 
relating to the legal condition of foreigners. Beginning in 1827 
with the Dutch Civil Code, and followed by the Italian Civil Code 
of 1865, it has now been adopted in the majority of European 
and American States. They recognize the principle of equality as 
far as the enjoyment and exercise of private rights are 
concerned, some few exceptions only being usually made on 
grounds of national policy, such as the prohibition or limitation 
of the ownership of land or ships, the right of fishery, the right of 
working mines, or egaging in the coasting trade, and a few others. 

Now, in regard to the legal condition of foreigners in Japan, 
we may distinguish three periods, which nearly correspond to the 
first, second and fourth stages above mentioned. The first period 
includes the time before the opening of the country to foreign in- 
tercourse ; the second from that time until the new Civil Code 
came into operation ; and the third from that time till the present 

During the first period, which may be called the Period of 
National Seclusion, there was no intercourse with foreign coun- 
tries. Foreigners were looked upon as barbarians or enemies. 
They could not come and reside in the country, except in a very 
few instances, and, therefore, they stood entirely outside the pale 
of the law. 

The second period, which may be call TJie period of the 
Treaties begins from the date of the second visit of Commodore 
Perry in 1854 and the conclusion of the treaty of peace and amity 
by him, followed in 1858 by the first treaty of trade and 
commerce with the United States. Some ports were opened for 
foreign trade, and foreigners could come and reside within the 
limits of the treaty ports and engage in trade, business or mission- 
ary work. But their rights depended upon the treaties, not 
upon the latv of the country. They enjoyed the privilege of extra- 


territoriality, that is to say, they brought their own laws with 
them, and remained under the jurisdiction of their respective 

In the third period, which may be, called the Period of 
the Code, foreigners enjoy their rights under the lazv, and the 
treaties only provide for the guarantees or limitations of rights. 
The new Civil Code, at its commencement, proclaims the noble 
principle of the equality of foreigners and native subjects before 
the law. Art. 2 provides that " Foreigners enjoy private rights 
except in those cases where such enjoyment is prohibited by law, 
ordinance or treaty." And as to foreign juridical persons. Art. 
36 provides, that " The existence of jurisdical persons other than 
states, administrative districts and commercial companies, is not 
admitted. But foreign juridical persons 'recognized as such by 
law or treaty do not come under this rule. 

Foreign juridical persons recognized as such under the 
provision of the preceding paragraph have the same private rights 
as the same classes of juridical persons existing in Japan; but 
this does not apply to such rights as foreigners cannot enjoy, or 
so far as special provisions are made by law or treaty." 

From the above provisions, it will be seen that the nezu Civil 
Code made the equal enjoyment of rights a general rule, and 
limitations and prohibitions exceptions. These limitations upon 
the foreigner's equal enjoyment of rights are not numerous, and 
do not differ greatly from those existing under the laws of many 
other modern states. Such restrictions are the ownership of land 
or Japanese ships, the right to work mines, to own shares in the 
Bank of Japan or the Yokohama Specie Bank, to become 
members of the Stock Exchange, to engage in the emigration 
business, to receive bounties for navigation or, ship-building and a 
few others. Otherwise foreigners are as free as the Japanese to 
engage in any commercial or industrial business, or to own shares 
in any Japanese companies. Even the restrictions above 


mentioned do not work so hard upon foreigners as it may at first 
appear, for, although foreigners as individuals can not own land, 
they may become members of any commercial company owning 
land or working mines. As individuals, they may have the right 
of superficies which is the right to use another person's land for 
the purpose of enjoying the right of property in structures and 
trees thereon. Moreover, the Law No. 39 of igoi, a right in 
rem called " the right of perpetual lease " was created especially 
for the benefit of foreigners or foreign juridical persons, who had 
held land in the treaty ports under lease from the Japanese 
government. These leases which had been no more than rights 
in personam were turned into rights in rem, and the rules relating 
to oiuncrship are applied to them. So, they are now practically 
the same as ownership ; and as soon as they pass into the hands 
of Japanese subjects they are turned into ownership. Moreover, 
opinions in favour of allowing foreigners to own land are daily 
gaining strength, so that this restriction is quite likely to be 
removed ere long. 

It will appear from the foregoing statement that the condi- 
tion of foreigners has undergone a great revolution during the 
half century which elapsed since the opening of the country. In 
'Ca& first period, foreigners had no right whatever ; in the second 
period, they enjoyed their private rights 7mder treaties; but in 
the third period, that is, under the new Civil Code, they enjoy 
their private rights nndcr the law, which recognizes the principle 
of equality as far as private rights are concerned. Thus, in a 
comparatively short space of time, Japanese lazu passed from the 
stage of Enmity to that of Equality — a revolution, which, in 
other countries, required many centuries to accomplish. The 
difference between the second stage in which their enjoyment of 
rights depended upon treaties, and the third stage in which their 
rights depend upon law, very clearly appears in the present con- 
dition of Russians in Japan. As the commercial treaties between 


Japan and Russia have come to an end by the outbreak of the 
war, if Russian subjects had enjoyed their rights only under the 
treaties, they would not be entitled to claim any protection from 
Japan, except as a matter of favour. But as their rights are now 
guaranteed by the provisions of the Code, Russian residents still 
remaining in Japan enjoy the protection of law, just as peacefully 
as the citizens of any friendly states. The Code assures them 
the equal enjoyment of private rights, whether the country to which 
they belopg be in amicable relations with Japan or not. This 
difference is further illustrated by Imperial Ordinance No. 352 
of 1 899, which declared foreigners who are not citizens of any of 
the Treaty Powers to have equal freedom of residence and pro- 
fession with the subjects of the treaty Powers. 

XI. The House and Kinship. 

It will be at once remarked by any one reading the new Civil 
Code that the Japanese family law, unlike that of Europe and 
America, rests upon the double bases of House and Kinship. 
The House of " iye," in the sense in which it is employed in the 
Japanese law, does not mean a household, nor a dwelling place, 
but a group of persons, bearing the same surname, and subject to 
the authority of its chief who is called " Koshu " or House-head. 
The other members who are subject to the authority of the 
house-head are called " Kazoku " or House-members. It is not 
necessary that a house should consist of a group of persons, for a 
house may exist even when there is only one person in it, in 
which case that person is still called " Koshu " or house-head. 
The house-membership consists of those relatives of the house- 
head or his predecessors, or sometimes also, of the relatives of 
house- members who are not related to the present or preceding 
house-heads by any tie of kinship, but who entered the house 


with the house-head's consent ; such for instance, as the relatives 
of the house-head's adopted son' or daughter-in-law. (Civil Code. 
Art. 732 — 745) The persons who constitute the members of a 
house are defined by law, and a registry is kept, in each district, 
of persons who are in each house. The house-membership is 
constituted in accordance with the following rules. 

1 . A child enters the house of its father. 

2. A child whose father is not known enters the house of its 

3. A " Shoshi " or natural born child recognized by its father 
who is a house-member, or a natural-born child of a 
female member of a house enters the house of its father or 
mother, only when the house-head's consent is obtained. 

4. A wife enters the house of her husband, except when a 
female house-head contracts a marriage, in which case the 
husband enters the house of his wife. 

5. A relative of a house-head who is in another house or a 
relative of a house-member who has become such by 
adoption or marriage, enters the house, if the consent of 
the head, both of the house he is leaving, and of the house 
he is entering, is obtained. A person who cannot enter 
any house, such as a child whose parents can not be as- 
certained, establishes a new house, and becomes himself a 

A house thus constituted is entered in the House-registry or 
"Koseki" which is kept in every district throughout the Empire. 

Kinship, according to the Civil Code arises from relation- 
ship by blood, by adoption or by marriage, and exists 

1. Between relatives by blood within six degrees inclusive. 

2. Between husband and wife. 

3. Between relatives by marriage within three degrees inclu- 
sive. (Civil Code. Art. 725). 

4. Between an adopted child and adoptive parent and the 


latter's blood-relatives, the same relationship exists, from 
the date of the adoption, as that between blood rela- 
tives. (Civil Code. Art. 727). 
5. Between step-parents and step-children, a wife and her 
husband's recognized child, the same relationship exists 
as that between parent and child. 
Now, a house may include persons who are not the kindred 
of the house-head, because it includes the kindred of the preced- 
ing house-head, or the kindred of a house-member who is not 
related to the present house-head ; and may exclude even the 
nearest kindred, because, by adoption or marriage and other 
causes above mentioned, a man may enter another house, or 
return to the original house by the dissolution of the marriage or 
adoptive tie, or establish a new house, leaving his own parents or 
child in the original house. The Jiouse, therefore, is zvider than 
kinship on the one side, zvhilst it is narrozvcr on the other. 
Sir Henry Maine's description of the ancient family so well tallys 
with the present state of the house in Japanese law — except in one 
particular which shows the peculiarity of Japanese family law, — 
that I cannot do better than quote his words in full. 

"The family, then, is the type of an archaic society in all Ihe 
modifications which it was capable of assuming ; but the family 
here spoken of is not exactly the family as understood by a 
modern. In order to reach the ancient conception, we must 
give to our modern ideas an .important extension and an import- 
ant limitation. We must look on the family as constantly 
enlarged by the absorption of strangers within its circle, and we 
must try to regard the fiction of adoption as so closely simulat- 
ing the reality of kinship that neither law nor opinion makes the 
slightest difference between a real and an adoptive connexion. 
On the other hand, the persons theoretically amalgamated into a 
family by their common descent are practically held together by 
common obedience to their highest living ascendant, the father, 


grandfather, or great-grandfather. The patriarchal authority of a 
chieftain is as necessary an ingredient in the notion of the family 
group as the fact (or assumed fact) of its having sprung from his 
loins ; and hence we must understand that if there be any persons 
who, however truly included in the brotherhood by virtue of 
their blood-relationship, have nevertheless de facto withdrawn 
themselves from the empire of its ruler, they are always, in the 
beginnings of law, considered as lost to the family. It is this pat- 
riarchal aggregate — the modern family thus cut down on one side 
and extended on the other — which meets us on the threshold of 
primitive jurisprudence." (Maine, Ancient Law, ch. V.) 

Here I may conveniently compare the House in Japanese 
law with the Family in Roman Law, in order to show the 
characteristics of the former. It differs from the Roman family 
chiefly in the following points : — 

(i) The House is not a family-group held together by 
" common obedience to the Iiighcst living ascendant " as 
in the Roman family, but is a /cgai entity originally 
founded an aucestor-ivorsJiip. Therefore, it would be 
nearer the truth to say that it is the highest dead 
ascendant, by the common obedience to whom a house 
is held together. The house-head is not necessarily the 
highest living ascendant, but is a person who succeeds 
to the ajitliority of the highest ascendant. Sometimes, 
therefore, a soji may be the house-head, and his father 
may be a house-member under his authority, as- in the 
case of abdication of the house-headship, which I will 
explain presently. Or, sometimes, a nephew may be 
the house-head, and the uncle may be a house-member 
under him, as will happen, when a grandson succeeds to 
the grandfather by representation. Or again, there may 
be no relationship at all between the house-head and the 
house-member as I have explained above. 


(2) In consequence of the above difference, the Roman 
family dissolved at the I'eath of each paterfamilias, and 
each of the next highest ascendants became in his turn 
sui juris and a paterfamilias, having all his descendants in 
his power. Thus, if the deceased paterfamilias had three 
sons, there would be three families instead of one. But 
the Japanese house is never dissolved at the death or 
abdication of a house-head and is succeeded by one 
person, all other members remaining aliciii juris as 

(3) According to the present Japanese law, a woman may 
become a house-head, and if she marries, she may continue 
to be the house-head and have her husband as a house- 
member under her power, provided such intention is 
expressed at the time of the marriage. (Civil Code. Art. 
736.) Under Roman Law, however, a woman could never 
exercise authority even over her children. 

(4) According to Roman Law, when a woman manied, she 
always entered the husband's family and passed into the 
power of another ; but according to Japanese law the 
luisbani enters the house of his wife in case of the 
marriage of a female house-head, and also in case of the 
adoption of a son-in-law or " muko-yoshi," which I will 
explain later on ; so that the famous maxim of Roman 
Law " Mulicr est caput it finis familiae " — a woman is 
the beginning and end of the family — does not apply to 

(5) Patria potestas was among the Romans an institution of 
private lazv; and it is so with us at the present time. 
But before the Restoration, it was an institution of public 
law as well as of private law, as I will explain when I 
come to speak of the decay of the house-system. 


XII. House-Headship and Parental 

From the nature of the double bases of the Japanese Fami- 
ly Law, it follows that a person may have Hw capacities, one as 
a member of the legal house, and the other as a member of the 
wider group of kindred. Thus, a person may be a house-head 
or a house-member, and, at the same time, he may be a son. 
In such cases, if he is the son of a house-head, he is placed un- 
der the house-head's power and under the parental power of the 
same person ; if he is a son of a house-member, who is himself 
under the power of the house-head, he is under the power of 
two persons, the house-head and the father. But if the house- 
head is a minor, and his father or mother is a house-member, 
the former is under the parental power of the latter, while the 
latter is subject to the' authority of the former. In such cases, 
conflict or inconvenience which may arise from mutual subjection 
to one another, is avoided by the provision of Art. 895 of the 
Civil Code, according to which the parent exercises the house- 
head's power on behalf of the minor house-head. 

Of the two bases of the Japanese Family Law, the House 
and the Kindred, more iveiglit is always laid on the former than 
on the latter, except in the two instances of the duties of support 
and maintenance and the succession to the property of house- 
members, both of which are new institutions introduced by the 
Code and are not bound by the limit of the house. In most 
other cases, the house takes precedence of the kindred, and a 
man's rights and duties, capacities and incapacities are usually 
determined by his position as a member of the house, and not by 
his position as a member of the kindred. Parental potver which 
is based on the conception of kinship is limited by the concep- 


tion of ike house, and is recognized only so far as the parent and 
child are in the same house. So, if a son is not in the same 
house with his father or mother, he does not stand under the 
paternal power of either. The consent of the house-head is al- 
ways necessary for the marriage, adoption, divorce or the dissolu- 
tion of adoption of the house-member, but the consent of parents 
is only required ivhen the offspring is in the same house with 

Here again appears the difference between the Roman and 
Japcinese family laws. The former recognizes only one authority 
of the head of the family, in the patria potest as of the highest 
male ascendant, and merged the parental power of the members 
of the family in that of the paterfamilias, while the Japanese law 
recognizes parental authority of the house-member side by side 
with the authority of the house-head. The authority of the 
house-head includes the right of consent above referred to, right 
of determining the residence of house-members, right of expelling 
them from the house or forbidding their return to it on certain 
grounds specified by law, and the right of succeeding to the house- 
member's property in default of other heirs. The parental power 
includes the custody and education of children who are minors, 
right of correction, right of determining their place of abode, busi- 
ness or profession, of managing their property, or performing 
several legal acts on their behalf, subject in some cases to the ap- 
proval of a family council. Most of the right falling under the 
parental power luere formerly included in the house-head' s pozver , 
but the new Civil Code recognized the authority of parent and 
transferred them to the parental power, and greatly curtailed that 
of the house-head, only leaving those rights to him, which are 
.necessary to the pi-eservation and proper management of the house. 
This recognition by the Civil Code of the parental power beside 
the authority of the house-head shows the transient state of Japan- 
ese society and is one of the points regarding which the framers 


of the new Code took pains to adjust the laws to the progressive 
tendencies of the society. Formerly, there was only one autho- 
rity recognized by Japanese law, as in the case of Roman Law — 
that of the house-head. But the new Civil Code took a decided 
step and recognized the parental power, besides the house-head- 
ship, due allowance being made to the long-existing custom 
among the people, by not going so far as to extend that recogni- 
tion to the parents who belong to a different house from that of 
the child. The tendency of the laws of a progressive society 
must be the gradual recognition of natural relationship in place 
of artificial connections ; and the process of evolution in this 
branch of law is from House to Kinship. The reform made by 
the new Civil Code may be regarded as the first step in that 

XIII. Relationships. 

The method of determining the degrees of relationship accord- 
ing to the new Civil Code is the same as that adopted in most 
countries of Europe and America, belonging to the system of 
Roman Law ; that is, by reckoning the number of generations 
which intervene between two persons, either directly when they 
are lineal relatives, or through a common ancestor, when they 
are collaterals. This system of determining the degrees of rela- 
tionship by the distance of consanguinity is the most natural 
one and is, for that reason, adopted from Western jurisprudence 
by the framsrs of the Code. But, previous to the adoption of 
the Code, while Japanese law still belonged to the Family of Chinese 
Law, relationship was determined in a different way. The basis of 
the new system is the distance of blood-relationship between 
relatives ; but the old law rested on the double bases of blood- 
relationship and family rank, that is to say, the degree of 


relationship was determined not only by the distance of blood- 
relationship, real or fictitious, but also by the consideration of 
superiority or inferiority of their relative positions in the family. 
In " the Ceremony Law " of the Taiho Code (701 A. D.), kindred 
are divided into the following Five Ranks or " Go-to-shin." 
(i) The Relatives of First Rank are ; father and mother, 

adoptive father and adoptive mother, husband, son and 


(2) The Relatives of the Second Rank are ; grandfather and 
grandmother, " tekibo " (or wife of the father of a con- 
cubine's child), step-mother, uncle and aunt, brothers 
and sisters, husband's parents, wife and concubine, bro- 
ther's child, grandson and granddaughter, and son's 

(3) The Relatives of the Third Rank are ; great grandfather 
and great grandmother, uncle's wife, husband's nephew, 
cousin, brother and sister by half-blood on father's side, 
husband's grandfather and grandmother, husband's uncle 
and aunt, wife of nephew, step-father, and child of hus- 
band by his former wife or concubine, provided the child 
is living in the same house. 

(4) The Relatives of the Fourth Rank are ; great great grand- 
father and great great grandmother, grandfather's brother 
and sister, father's cousin, husband's brother and sister, 
brother's wife and concubine, second consin, grandfather 
and grandmother on mother's side, uncle and aunt on 
mother's side, brother's grandchild, cousin german's child, 
sister's child, great grandchild, grandson's wife and con- 
cubine and child of wife's or concubine's former consort. 

(5) The Relatives of the Fifth Rank are ; parents of wife or 
concubine, aunt's child, cousin on mother's side, great 
great grandchild, grandchild by a daughter who entered 
another house by marriage, and son-in-law. 


The above table will show that the degree of relationship 
was greatly modified by the consideration of rank in the family ; 
so that those who stand in the same rank are not always related 
in an equal degree, when measured only with reference to the 
distance of consanguinity. It will be seen that precedence is 
generally given to father's and husband's relatives, and to those 
zuho are in tlie same house, in preference to motJier s and ivife's 
relatives and to those zvho are in anotlier house. Thus, uncle and 
aunt on the father's side stand in the Second Rank, while those 
on the mother's side stand in the Fourth. Husband is the re- 
lative of the First Rank to wife, but the wife is the relative of 
the Second Rank to the husband. Husband's parents are in the 
Second Rank, while wife's parents are in the Fifth. Nephew 
and niece by brother are iji the Second Rank, while those by 
sister are in the Fourth. Grandchild by son is in the Second, 
while grandchild by daughter is in the Fifth Rank, because the 
latter is in another house on account of marriage. 

The law also made distinction between " sonzoku " or " su- 
perior kin" and "hizoku" or "inferior kin." The former includes 
all relatives, lineal and collateral, who stand above any person 
in the same lateral line of the table of consanguinity ; such as 
father, uncle, father's cousin, grandfather etc, while the latter in- 
cludes those who stand in the lateral lines below him, such as 
son, nephew, cousin's child, grandson etc. 

This system of classifying relatives into Five Ranks was derived 
from the Chinese Latv of Mourning. From ancient times down to 
the present day, Chinese law has been very strict as to mourning, 
because it was considered as the highest duty of a man to show 
respect and love toward the departed soul of his relative by that 
act ; and the moral as well as the legal code prescribed even the 
" Mourning of Three Years " to the dutiful son. Chinese codes 
abound in minute regulations as to the mourning dress, the dura- 
tion of the time of mourninsf and the conduct of mourners. The 


mourning dress is divided into five classes and the duration of 
the period of mourning is fixed by the class of the mourning dress 
which the mourner ought to wear. The mourning dress is coarser 
in material and make, as the person mourned for stands nearer and 
higher in the family position to the mourner ; the first class which 
is worn for parents, husband, and husband's parents, being the 
coarsest. The first class mourning dress is worn for three years, 
the second for two years, the third, for nine months, the fourth 
for five months and the fifth for three months. Relatives are 
(X'&s^x'a&diaccording to the five classes of mourning dresses^'\\\c\i are 
worn for them. Thus, for instance father and mother belong to 
the relative of the first class mourning dress ; grandparents to the 
second class ; cousins to the third ; great uncles and aunts to the 
fourth ; and wife's parents to the fifth. This classification of rela- 
tives according to the five classes of mourning dresses very 
nearly corresponds to the Five Ranks mentioned in the Taiho 
Code, except with respect to great grandparents who belong to 
the Third and Fourth Rank respectively according to the Taiho 
Code, but who are placed according to Chinese law in the second 
class. Besides, this classification which is made in the Ceremoni- 
al Law of the Chinese Codes, finds its place in the " Ceremony 
Law" or "Gi-sei-ry5 " of the Taiho Code, instead of the "House 
Law " where one would naturally expect to find it. So, there is 
little room for doubt, that the above-mentioned Japanese clas- 
sification of tJic relatives into the " Five Ranks " had its origin 
in the Chinese laiv of mourning dress. 

During the Tokugawa Shogunate, the study of the Chinese 
classics was greatly encouraged, and in 1638 the famous 
" Mourning Law " i^"^-,^) was made, which has since then 
been amended several times and the classification of the "Five 
Ranks " went practically into disuse, until it was revived by the 
Criminal Code of 1870, which struck off concubines from the. 
Third, Fourth and Fifth Ranks, and made a few other unimport- 


ant alterations. But with the publication of the present Criminal 
Code in 1882, it was abolished, and was replaced sixteen years 
later, by the present system of reckoning relationship adopted in 
the new Civil Code. In this respect too, Japanese law has 
passed from the Chinese to the European Family of Law. 

XIV. The Law of Personal Registration and 
the Civil Code. 

As the house in the Japanese Family Law is narrower, in one 
respect, than kindred, and may exclude even the nearest relatives 
by blood, and wider, in another respect, and may include strangers, 
there is no logical test to determine the sphere of persons con- 
stituting the house other than their common subjection to the 
authority of one man, the house-head. Some other external 
legal evidence is required, therefore, for determining the 
constituent of a particular house. Such evidence is supplied by 
the register which is kept in every district throughout the 
Empire. As a person's birth, marriage, adoption, guardianship, 
death, succession, entrance to, or separation from, a house, 
acquisition or loss of nationality, and every other change of man's 
status is recorded in the register, the law relating to registration 
forms a supplementary law to the Civil Code and the present 
law was promulgated and put into force on the same day as the 
Code. As the register is the record of man's legal position in 
society, the development of society is often reflected in the law of 
registration. Three stages may be distinguished in the history 
of the law of personal registration in Japan; ist, the Epoch of 
Clan-registration, 2nd, the Epoch of House-registration, and 
3rd, the Epoch of Status-registration. These epochs show the 
changes in the units of state and correspond to the three stages 
in the process of social disintegration. 


In the early days of Japanese history, it was not the in- 
dividual nor the family that formed the unit of state. The state 
only took cognizance of clans and the government of families and 
individuals in each clan was left to the chief of the clan or "uji-no- 
kami " who was usually the eldest male descendant of an 
eponymous ancestor. He was honored and obeyed by clansmen 
as the representative of their common ancestor. He was the 
head of their worship, their leader in time of war, and their 
governor in time of peace. There were Great Clans or " o-uji " 
and Small Clans or " ko-uji," the latter being included in the 
former. Clansmen of the Small Clan were governed by their 
chief who was himself subject to the chief of the Great Clan. 
Thd Emperor was the supreme authority over them, and all the 
laws and proclamations of the Imperial Government were trans- 
mitted to the " uji-no-kami " of the Great Clans, who, in turn, 
transmitted them to the " uji-no-kami " of the Small Clans. 
Thus each clan was a body founded on community of blood and 
worship axiA for 71 ud an adininistrath'e division of the country, 
corresponding to the present administrative divisions, such as 
provinces, cities, towns, district and villages. 

Since the introduction of Chinese civilization and the 
Reform of the Taika Era (645 A. D.), in spite of the fact that 
the clan-system of government continued for a long time after- 
ward, the basis of the administrative division of the country 
gradually changed from a personal to a territorial system and 
provinces and districts took the place of clans. 

In those early days of clan-government, it was of the utmost 
importance that each man's clan-name should be kept sacred. 
As only those who belonged to certain clans could fill high 
official positions, or join the Imperial body-guard, and as several 
other privileges were enjoyed by particular clans, attempts were 
often made by clansmen to forsake their original clans and 
surreptitiously adopt the names of other and more iufluential 


clans. In order to put a stop to these abuses, the " ordeal of hot- 
water " or " kugadachi " was resorted to, which consisted in 
plunging the hand into hot water before the temple of a god. It 
was claimed that those who assumed false clan-names would 
suffer injury, while the innocent would escape unhurt. After- 
ward, in the year 815 A. D., a " Register of Clan-names " or 
" Seishi-roku " was compiled, a part of which is still in existence 
to-day. This Register consisted of 30 volumes and contained 
1 182 clan-names. 

The introduction of the House-register or " ko-seki " dates 
back as far as the 1st year of the Taika Era. But it owes its 
origin to the adoption of Chinese institutions, and although its 
introduction was earlier in date than the final compilation of the 
register of clan-names, its historical order must come after that 
of the Clan-Registry, for the system of House-Registr}' has 
continued from that remote period down to the present 

It was only in the year of the publication of the new Civil 
Code (1898), that our law of registration began to enter upon the 
third stage of its development. The present law, which was 
promulgated at the same time as the Civil Code, and which 
replaced the previous law of 187 1 still retains the name of " Ko- 
seki Ho " or the "Law of House-Registration;" but the character 
of the laxv has widergone a change, necessitated by the progress 
of the social condition of the country, for it provides for the 
registration of individual status or " jnibuu-toki " as ivell as of 
house registration. 

It is sometimes asserted that the family was the original 
unit of the state, and that an aggregation of families formed a 
clan. But this view seems to reverse the real order of develop- 
ment. The clan grew out of the expansion of a family, and 
separate households grew np within the clan by the increase of 
clansmen. It was their common worship and common clan- 


name which united them to a group. So it was the chn which 
was first recognized by the state and formed its unit. The 
family or house was included in the clan and did not yet possess 
separate existence in the eyes of the law. It zoas only by the 
gradual disintegration of the clan and the growth of the 
central pozver of the state that the family or house came to the 
fore, and began to form the unit of the state. Thus, the 
constituent elements of each society become smaller aud smaller, 
until they divide themselves into atoms or individuals. 

XV. Adoption. 

The importance of the fiction of adoption to primitive society 
has been illustrated by Sir Henry Maine in many places. In one 
passage, he says, " Without the fiction of Adoption which permits 
the family tie to be artificially created, it is difficult to understand 
how society would ever have escaped from its swaddling-clothes, 
and taken its first step towards civilization " (Ancient Law ch. II.) 
Its importance in India and also at Rome and Athens is well 
known among students of historical and comparative jurisprudence. 
But in modern systems of law, adoption no longer occupies the 
position of importance which it held in archaic societies. It still 
survives in most of the countries which have received Roman 
Law, but with several restrictions as to its effects, which make it 
in no way resemble that assumption of real kinship which 
characterized the ancient form of adoption. To the English 
Family of Law, it is totally unknown as a legal institution. 

But in Japan, adoption may be regarded as the corner-stone 
of Family Law. Without it, the continuity of the House, upon 
which rests the perpetuation of ancestor-worship, cannot be 
maintained. The practice of adoption has been so common and 
universal among the people, from ancient time down to the 


present day, that Prof. Chamberlain writes " It is strange, but 
true, that you may often go into a Japanese family and find half- 
a-dozen persons calling each other parent and child, brother and 
sister, uncle and nephew,' and yet being really either no blood- 
relations at all, or else relations in quite different degrees from 
those conventionally assumed." 

Adoption in different systems of law may be classified zuith 
regard to its object, under the following four heads : — 

(i) Adoption for the purpose of pertetuating the family 

(2) Adoption for the purpose of obtaining a successor 
to house-headship. 

(3) Adoption for the purpose of obtaining a successor to 

(4) Adoption for charitable purposes, or for consolation in 
case of childless marriage. 

The historical order of the developement, or rather the 
decay, of the law of adoption is usually as indicated above. I 
will proceed to explain them in order, 
(i) Adoption for the purpose of perpetuating Family sacra. 

Death without an heir to perpetuate the worship of 
ancestors was considered to be the greatest act of impiety which 
a descendant could commit. So, in the case of the failure of 
male issue, it was the bouudeii duty of a house-head to acquire a 
son by means of adoption. Adoption was, as Fustel de 
Coulanges says, " a final resource to escape the much dreaded 
misfortune of the extinction of a worship." 

Many provisions of our ancient Code show that the object 
of adoption was the perpetuation of the sacra. The House Law 
of the Taiho Code provides that " A person having no child may 
adopt one from among his relatives within the Fourtli Rank of 
Kinship, whose age does not exceed that which might have 
been attained by a son of the adopter's own body." According 


to some commentators on the Taiho Code, " having no child " 
here means that the adoptive father should have reached the age 
oisixiy years, or the adoptive motheryf//j/ years, without hav- 
ing ;««/i- /ssuf. The reason for limiting the age of the adaptor 
was, that as long as any hope of having a male issue of blood, 
that is, the direct descendant of his ancestors, existed, the head 
of a house should not permit a [lerson of more distant relation- 
ship to become the successor to the sacra. 

That the object of adoption was the perpetuation of ances- 
tor-worship may also be inferred from the old strict rule that 
only a kinsmnn could be adopted as a son. The Taiho Code did 
not permit adoption of kindred beyond the Fourth Rank, as I 
have said above. From the remains of the Taiho Criminal Code 
which have come down to us, we know that a punishment of one 
year's penal servitude was inflicted upon one who adopted a son 
from a different clan. This prohibition against the adoption of 
a person not related by blood derives its origin from the belief 
which generally exists where the practice of ancestor-worship 
prevails, that " the spirit does not receive the offerings of 

Another requirement of adoption, which is to be found in 
the laws of many countries, is the absolute failure of male issue. 
The House Taw of the Taiho Code allowed adoption only in case 
a man had no son. The object of this rule is clear from what I 
have .said above. A rempter relative should not be admitted 
where there is a nearer descendant to make offerings. 

There is one peculiar form of adoption called " muko-y5shi " 
or " adoption of son-in-law," the origin of which must be attribut- 
ed to the same cause, As I have said above, the law consider- 
ed a man childless, even though he had a daughter. Males 
were the only continuators of worship. Those who had daught- 
ers only were, therefore, obliged to adopt a son ; but it was 
necessary for the blood of the ancestor to be, if possible, contin- 


lied ill the house. In such cases, a house-head selects a person 
who is fit to be his daughter's husband and adopts him as a son. 
If adoption and marriage take place at the same time, it is called 
"muko-yoshi" or "adoption of son-in-law." The same object may 
also be attained by the subsequent marriage of the adopted son 
with the daughter of the adopter, for the collateral relationship 
of brother and sister by adoption is no bar to their marriage. 
(2) Adoption for the purpose of obtaining a successor to 


As the house is the seat of ancestor- worship and the house- 
head is the continuator of the sacra, this kind of adoption cannot 
be regarded as differing from that above mentioned. But with 
the development of the house-system, the authority of the head 
of a house begins to be regai'ded as a distinct object of inherit- 
ance by itself and the family sacra only as one of the duties in- 
cumbent upon the house-head. Especially was this the case, 
when hereditary office, profession or fief belonged to house- 
headship. In Japan, this stage was reached when the Feudal 
System was established, and Daimios and Samurais had their fiefs 
belonging to their houses Under the Feudal regime, the nature 
of military service required that males only should become 
house-heads. Hence the failure of male issue was also the cause 
of adoption. It was necessary to make provision against the 
continzency of a house becoming extinct and the fief being 
escheated by failure of heirs. As professions were at that time 
usually hereditary and were considered as belonging to certain 
houses, adoption was frequently resorted to, in order to keep the 
profession in the house. Physicians, artists, masters of fencing, 
riding, archery, professors of classics and the like often adopted, 
by special permission, those qualified to succeed them in the 
profession, even though they may have had sons of their own, 
the latter, however, being unworthy of their fathers. This kind 
of adoption was called " geido-yoshi " or " arts-adoption." 


It has just been remarked that the Taiho Code fixed the 
lower hmit of the adopter's age at sixty for the father and fifty 
for the mother. But this rule took another form under the law 
of the Tokugawa Government. The limit of the age was 
fixed as low as seventeen. A house-head above that age, or 
even by special permission under that age, who had no male 
issue was allowed to adopt a son, in order to prevent the extinc- 
tion of a house by his sudden death, causing the escheat of 
his feudal property. A person between the ages of seventeen 
and fifty years could even adopt a son on his death-bed, which 
kind of adoption was called " kiu-yoshi " or " quick adoption." 
But after the age of fifty, " quick adoption " was not allowed, 
so that he was obliged to provide for the succession to the house- 
headship early in life, even if he still had the hope of having 
male issue. The Taiho Code allowed adoption only in old age, 
because it, was desirable that ancestor-worship should be con- 
tinued by the nearest blood descendants. The Tokugawa Law 
allowed and encouraged adoption by young people, and attached 
severe penalties to the neglect of the precaution to provide for 
succession early in life, in order to avoid the chance of a house 
becoming extinct. 

(3) Adoption for the purpose of obtaining a successor to 

Next comes the time when the notions of succession to 
sacra and house-headship gradually recede into the background 
and the notion of property succession comes to the fore. This 
stage is first reached in the new Civil Code. With the Restora- 
tion of the Imperial power and the abolition of Feudalism, house- 
headship has lost more than half of its former importance. Fiefs 
were abolished ; offices and professions ceased to be hereditary 
privileges of house- heads ; and, so far as public law is concerned, 
house-members now stand on an equal footing with house-heads. 
What remains of the rights and privileges attaching to house- 


heads is enjoyed within the sphere of private law. Of these the 
right of enjoying house-property is the most important, at least, 
so far as material interests are concerned. Besides, housemem- 
bers are now allowed to have independent property of their own, 
as I have already explained, and they may adopt just in the same 
way as house-heads, provided the consent of the latter is obtain- 
ed. (Civil Code. Art. 750). During the Feudal period, only 
house-heads were allowed to adopt, because the object of adop- 
tion was the continuation of house-headship ; but now adoption 
is no longer the exclusive privilege of house-heads because its object 
is not limited to obtaining a successor to house-headship. Wills, 
although not quite unknown to the old Japanese law, were very 
rare in practice and their place was taken by adoption. What is 
done in Europe and America by zvill is done in Japan by adop- 
tion. Instead of giving away property to another person by will, 
which becomes effective after death, a Japanese takes another 
person into his house by adoption during his lifetime and makes 
the latter the expectant successor to his property. 
(4) Adoption for Consolation in case of Childless Marriage. 

This is the only kind of adoption which has no connection 
with the house-system and marks the last stage in the history of 
the law of adoption. In Occidental systems of jurisprudence, 
will has taken the place of adoption, and the principal ground on 
which this institution is still retained is for consolation in case of 
childless marriage. Although the adopted child usually obtains 
the right of succeeding to the adoptor's property, this is the 
effect of adoption and cannot be regarded as the ground for 
allowing adoption. Con.solation in the case of a childless mar- 
riage constitutes the principal motive to this act, and therefore 
most systems allow adoption only when the adoptor has no 
children of his ov/n and is of such an age as to preclude reasona- 
ble expectation of any being born to him. In Japan also adoption 
often takes place from the same motive, but it cannot be regarded 


as a legal ground, because the new Civil Code does not limit 
adoption to the case of childless marriage. The Japanese law 
of adoption is now in a transient, state, and is passim^ from the 
second to the third stage of its d.evelopinent, but has not yet 
entered the fourth. 

XVI. Succession in General. — The Evolution 
of the Law of Succession. 

I think it may be laid down as an universal rule of the evolu- 
tion of the law of succession that it passes throgh three stages of 
evolution; \he fst stage is that of the succession to sacra, the 
second that of the succession to status and the third that of the 
succecssion to property. Each stage of development^ however, 
did not form a distinct period in itself, but the later was gradually 
evolved out of the earlier by the process of differentation. In 
ancient times, the duty of performing and continuing the worship 
rested on the head of a house, and the property of a house 
belonged exclusively to him. He exercised autJiority over the 
members of his house, because he was \he contiuuator of the 
ancestral sacra, and, in one sense, the representative of the 
ancestor. He owned his property, because it was left by the 
ancestor, and the authority and property of a house-head rested 
on the zuorship of ancestors. In those times, continuation of 
house-worship formed the sole object of inheritance. But in the 
course of time, the authority of the house-head which at first 
comprehended both power over the members of the house and 
rio-hts over house property, came to be considered by itself in 
law. Afterwards the two constituent elements of the authority 
of the house-head gradually began to be separately considered, 
until, at last, property came to be regarded as a distinct object of 


There are perhaps few systems of law which can illustrate 
the above proposition and indicate the process of gradual deve- 
lopment so clearly as the Japanese law of succession to the head- 
ship of a house. In the Succession Law " Keishi-ryo " of the 
Taih5-Code (701 A.D.) there is a provision that if a presumptive 
heir of a noble family "is not fit to succeed to the important 
duty " owing to the committal of crime or to disease, he may be 
disinherited and another presumptive heir may be substituted. 
The official commentary on this Code " Ryo-no-gige " says 
" to succeed to the important duty " means " to succeed a father 
and inherit the sacra, for the matter of worship is the most im- 
portant." It appears that, at this time, the • continuation of 
ancestor-worship was the principal object of succession. Since 
the middle ages, the word " Katoku Sozoku " or "the succession 
to house-authority " was used for succession, and in the Feudal 
period, espesially during the Tokugawa Shogunate, succession 
represented the continuity of the status of house-headship. In 
later times " Katoku " which literally means " house-autliority " 
was very frequently used for " liousc-property " which formed 
the object of inheritance just as the word " familia " in Roman 
law was often used to designate property. This transition of the 
use of the word " Katol-:u" indicates thatthe law of succession was 
gradually passing from the second to the third stage referred to. 

The present law of succession, contained in Book V of the 
Civil Code, shows tha^t ya/^anese /ate is rapidly passing from the 
second to the third stage above mentioned, zuithont losing its ori- 
ginal trait of the succession to sacra. The new Civil Code 
recognizes tzoo kinds of succession ; Succession to house-head- 
ship or " katoku s5zoku " and Succession tj property or " isan 
sozoku." But there are many rules still remaining, which show 
that the foundation of the succession to the house-headship is the 
necessity of continuing the worship of ancestors. Article 987 
contains the following provision : — 


"The ownership of the records of the genealogy of the 
house, the article used for house-worship and the family tombs 
constitutes the special right of succession to the headship of a 

This important provision means that those things which are 
specified therein form the special objects of inheritance. They 
cannot be bequeathed away, nor can they be seized for 

Though the house is no longer a corporation, as was formerly 
the case, it is still a legal entity whose continuance is assured 
by law, and does not break up at the death of each house-head. 
So, there can be only one heir to its headship, and the new Civil 
Code recognizes many kinds of heirs to house-headship in order 
to provide against the contingency of the failure of the heir. 
They are ; ist, " the Legal Heir," 2nd, "the Appointed Heir," 
3rd, " the Chosen Heir " and 4th, " the Ascendant Heir." The 
Leeal Heir who comes first in the order of succession, is tlie lineal 
descendant of a house-head^ tvho is at the same time a member 
of his house. Among lineal descendants, nearest kinsmen are 
preferred to more remote, males to females, and legetimate child- 
ren to illegitimate, seniors in age being always accorded priority 
when they are equal in other respects (Civil Code. Art. 970). 
Modern writers on law usually give as a reason for the preference 
of nearer to remoter kinsmen that the order of succession is 
determined by the decree of affection which the deceased is pre- 
sumed to have entertained towards his relatives, and also by the 
presumed intention of the person who dies intestate as to the dis- 
position of his property. For the preference of males over females 
feudal reasons are often given. These reasons also form the 
principal basis of our present law. But, the reasons for the 
existence of the rule and its origin are not always the same. 
Originally, the nearest in blood to the ancestors tvorsliipped, and 
their male descendants were preferred, because they were con- 


sidered to be the fittest persons to offer sacrifices to the spirits of 

The Legal Heir is Jieres necessarian and is not allowed to 
renounce the succession, whilst other kinds of heirs are at liberty 
to accept or renounce the inheritance, or to accept it with the 
reservation, that they shall not be liable for the debts of their 
predecessors. It is the bounden duty of a descendant who is the 
Legal Heir to accept the inheritance and continue the sacra of the 

The house-head cannot bequeath away from him more than 
one half of the property (Civil Code. Art. 1130), nor can he 
disinherit him, unless there exists one of the grounds mentioned 
in Article 975 of the Civil Code. The causes especially men- 
tioned there are : — 

(ij ill-treatment or gross insult to the house-head, (2) unfit- 
ness for house-headship on account of bodily or mental infirmit- 
ies, (3) sentence to punishment for an offence of a nature disgrace- 
ful to the name of the house and (4) interdiction as a spend- 
thrift. These grounds relate directly to the house-head's authority 
and indirectly to ancestor-worship and the necessity of maintain- 
ing intact the reputation and property of the house. 

In case there is no legal presumptive heir to a house-head, 
he may appoint an heir, either in his lifetime or by his will. 
(Civil Code. Art. 979^'. 

If, at the time of the death of a house-head, there is neither 
a Legal Heir, nor an Appointed Heir, the father of the deceased, or 
if there is no father, or if he is unable to express his intention, the 
mother, or, if there are no parents or both are unable to express 
their intention, the family council chooses an heir from among 
the members of the house according to the following order: — ist, 
the surviving wife, if she is a "koiise-daughter," 2nd, brothers, 3rd, 
sisters, 4th, the surviving wife who is not a Jiouse-daughter, and 


finally 5th, the lineal descendants of brothers and sisters (Civil 
Code. Art. 982). 

Now, in this also, the desire for preserving the blood of 
ancestors will be seen from the order in which the heir is chosen. 
The surviving consort of the last house-head comes Jirsi in the 
order of succession, provided that she is a " house-daughter i' 
but fourth if she is not the descendant in blood of an ancestor of 
the house. 

If there is neither a Legal, nor Appointed, nor Chosen Heir, 
then the nearest lineal ascendant of the last house-head succeeds, 
males being always preferred to females between persons stand- 
ing in the same degree of relationship (Civil Code. Art. 984). 

If there are no other heirs above mentioned, the family 
council must choose one from among other relatives of the last 
house-head or members of his house, house-heads of branch- 
house or members of principal or branch-house. If none of the 
presons above mentioned be existing or able to succeed, then as 
a last resort,. the family council may choose an heir from among 
other persons (Civil Code. Art. 9S5). 

From the foregoing enumeration of the various kinds of 
heirs, it will be seen that the law takes every precaution against 
the contingency of a house becoming extinct; for with the 
extinction of the house, the worship of its ancestors would come 
to an end. 

XVII. Property Succession. — The Recognition 
of House -members Separate Property. 

The second kind of succession, namely Property Succession 
is a new institution introduced by the new Civil Code. Accord- 
ing to the Code, Property Succession includes only the succession 
to the property of a house-member on his death. 


Before the Restoration, a house was in a strict sense a 
corporation, and a house-member could not have separate proper- 
ty of his own. All he gained he gained for the house-head or 
rather the house ; all he possessed or enjoyed he possessed or 
enjoyed by the license of the house-head, not as of right. No 
question of succession to the property of house-members could 
therefore arise at that time. But the Restoration completely 
changed this state of things. It was one of the policies of the 
new Imperial Government to appoint its officials not, as before, 
on account of birth, but on account of personal merits, no distinc- 
tion whatever being made as to whether they were house-heads 
or house-members. Fomerly, it was only the house-head that 
could hold public office. During the first years of the Imperial 
Government, statesmen and soldiers who had served in the cause 
of the Restoration were rewarded with life or perpetual annuities. 
But many of them were not house-heads; some were " inkyo " 
or house-members who had become such by abdicating house- 
headship, others were younger members of houses. Now, tJiese 
annuities and the salaries of civil and military officials being 
given by the State for personal services or merits, could not be 
treated as iLousc-property. Thus began the independent and 
separate property of house-members, with the first great blow 
which the old family system received at the hand of the Imperial 
Government. It is interesting to note that this is exactly what 
happened in the beginning of the Roman Empire, when castrense 
pecliiim of filiusfamilias was recognized for military services, 
and three centuries afterward giiasi-castrense pccliitm for civil 

The issue of a law in 1872, which abolished the prohibition 
of the sale of land, and granted title-deeds to landowi:ers, the 
issue, in the following year, of the government bonds for public 
loans, and the establishment of Joint-stock companies and savings- 
banks mark the next step in the development of the separate 


property of house-members. The courts of Law began to re- 
cognize house-members' separate property hi the title-deeds, 
bonds, stocks, debentures or savings which they held in their 
own names, and thus individual property began to grozu up by 
the side of house-property. But on the other hand, a Law (No. 
275) was passed in 1872 to the effect, that the house-head 
should not be liable for the debts contracted by house-members, 
unless he became a surety to the contract. 

Although the separate property of house-members was thus 
established, the rule of succession was not settled until the pro- 
mulgation of the new Civil Code. As a rule, the property left 
by a deceased house-member went to the house-head. But here 
again, the Code took a decided step and gave the right of suc- 
cession to the nearest descendants equally, whetlier they 7uere 
males or females, or ivhether they voere in the same house with 
the deceased or not, the right of representation being always 
given to the children of the pre-deceased descendant. After 
descendants comes the consort ; next in order, the lineal ascen- 
dant ; and as the last successor, the house-head. Other rules 
relating to this kind of succession do not differ much from those 
we find in Western countries. 

By comparing the above mentioned two kinds of succession, 
we shall notice that they present a remarkable contrast and' in- 
dicate the transient stage in which the Japanese law of succession 
finds itself. The rules relating to succession to house-headship 
rest chiefly upon indigenous elements, while those relating to 
succession to property are based principally upon Western ideas. 

XVIII. Succession inter vivos. 

Another characteristic of the Japanese succession law is the 
existence of Succession inter vivos, side by side with Succession 


mortis causa. The succession which arises during the lifetime 
of the person succeeded, takes place only with reference to stic- 
ccssion to house- headship ; for house-headship may come to an 
end either by a house-head's death or the loss of house-headship 
during his life-time. Succession inter- vivos takes place in the 
following cases : — 

I. "Inkyo " or abdication of house-headship. 

II. Loss of nationality by a house-head. 

III. The marriage of a famale house-head. 

IV. The divorce of a husband who has married a female 

V. When a house- head leaves the house in consequence of 
the invalidation of his marriage or adoption. 

I will explain each of the causes of succession inter vivos 

in order. 

i. " Inkyo" or abdication of house-headship. is not a lifelong authority. It may be lost 
in several ways, the most usual of which is its abdication or 
" inkyo " which literally means " living in retirement." 
The origin of this custom has been sometimes ascribed to 
Buddhism, but I have shown in a work especially devoted 
to this subject (" Inkyo-ron " or " Treatise on Abdication " 
1 891.) that this institution was originally derived from China, 
and developed among us by the influence of Buddhism and 
Feudalism. The abdication of house-headship may be 
classified with reference to its causes under the following 
four heads ; namely, Religious Abdication, 2nd, Political 
Abdication, 3rd, Judicial Abdication and 4th, Physiological 
(1) Rehgious Abdication. 

After the introduction of Buddhism the practice, gradually 
grew up, among higher classes, of withdrawing from active 
life when any person attained " the age of retirement" which 


was seventy according to the Chinese Ritual Code, and 
closing his days in religious devotion as a hermit or priest. 
Our history abounds in instances where ministers of state 
tendered their resignations for the purpose of devoting the 
rest of their lives to religious practice. As I have already 
said, house-headship was rather an institution of public law 
than of private law, and the resignation of office usually 
brought with it the loss of house-headship. In later times, 
the middle and lower classes, began to imitate the example 
set by the heads of noble families, until it has become a 
general custom among the people. Until recently, it was a 
very common- practice for retired persons to shave their 
heads, like Buddhist priests, in token of their having given 
up secular business and of having embraced the religious life. 
It was for this reason that the designation of " niudo-inkyo" 
or "priestly retirement" was employed for this kind of 

This practice is very common among the Hindoo whose 
life is distributed into three periods, namely the Student, 
Householder and Ascetic periods. Minute regulations as 
to the life of the ascetic arc contained in Hindoo lawbooks, 
especially in the sixth chapter of the Code of Manu. Enter- 
ing into a monastery seems to have had the same effect as 
death in the early Germanic and English laws (Young's 
Anglo-saxon Family Law, Co Litt. 133, Blaxland's Codex 
leguni Anglicanarum p. 2r7.) and in the French law before 
the Revolution (Zachariac, Franz. Civilrecht § i G2.), but 
since the abolition of civil death in modern legal systems 
succession inter vivos does not occur in European Families 
of Law. 
(2.) Political Abdication. 

From an early period of our history, it was very common 
for the upper and middle classes to resort to abdication for 


various political reasons. Sometimes it was made use of by 
unscrupulous minister of State or influential servants of Dai- 
mios to deprive misters of their power, and put other 
persons, perhaps puppets, in their places; sometimes, house- 
heads retired in order to shift responsibilities to other 
persons' shoulders, and wield real power themselves, or 
pull strings from behind the curtain ; or sometimes they gave 
up the worldly life and led the ascetic life out of political 
discontent or disappointment. 
(3) Legal Abdication. 

I mean by legal abdication the compulsory loss of 
house-headship by way of punishment or atonement for a 
crime or other grave fault. Cases occurred very frequently 
during the Feudil times, especially under the Tokugawa 
Shogunate, in which a house-head was se;itenced or ordered 
to abdicate as a punishment for his offence. Particular names 
have been given to this kind of abdication, such as " Zaikwa- 
inkyo " or " penal abdication "; or " Chikkyo-inkyo " or 
" confinement abdication "; or " Tsutsushimi-inkyo " or 
"reprimand-abdication." House-heads were also very 
often forced to abdicate by the resolution of family councils 
on account of their moral depravity, which made them 
unfit for the duties of house-headship. Even in the 
beginning of the present reign, this kind of abdication conti- 
nued ; and Art. 14 of the Criminal Code of 1873 provided 
that Kwazoku and Shizoku or nobles and samurais who were 
guilty of crimes, involving grave moral depravity, should be 
sentenced to the loss of house-headship, together with their 
(4.) Physiological Abdication. 

The decay of physical or mental power either on account 
of old age or ill health is the most common cause of 
abdication. Manu says " When a householder sees his skin 


wrinkled, and his hair white, and ihe sons of his sons, then 
he may resort to the forest " (Manu. VI. 2.). As house- 
headship was an institution o{ public Inw as well as of private 
lazv, it involved not only power over the house-members, but 
also many duties toward tlie stale, besides duties and 
responsibilities toward the house-members, which were in- 
cumbent upon that position. So, house-heads were 
often obliged to retire from the active duties of family life, 
when their age or state of health made them unfit for that 
position. This was especially the case with the samurai 
class dur'mgthe. Feudal period, when physical poiver was 
e specially necessary for the discharge of in Hilary duties. 
It is for this reason that .abdication came to be regarded as 
an important and necessary institution, and lazus relating 
to it made great progress under the military regime 
of Feitdalism. 

The rule with regard to the age at which a house-head 
was allowed to abdicate was se-oenty before the establishment 
of the Feudal System, which was the age of retirement 
according to the Chinese Ceremonial Code (ISh|£). But 
this age zvas loiuered under Feudalism and fifty was 
fixed as the lowest limit of the age at which a 
was allowed to abdicate without adducing any other reason. 
But since the abolition of Feudalism and the establishment 
of the conscription .sy.stem, which imposes military duty 
irrespective of a man's position in the house, there is no 
need to keep this low limit of age. Tlie new Code raised 
it again and fixed it at sixty ; so that there have been 
three changes as to the age of retirement, the ist being 
seventy, the 2nd fifty and the 3rd sixty. 

According to the new Code, a house-head may abdicate 
when he has attained the age of sixty, but in case of a female 
house-head , she may abdicate irrespective of her age (_Civil 


Code. Art. 752 & 755.) In all other cases, the permission of a 
court of law is necessary. Such permission is given, if a house- 
head is unable to continue the management of the house 
owing to one of the following ; namely, sickness, the 
necessity of succeeding as heir to the headship of the main 
branch of the family, or of resuscitating it, the desire to entei 
another house by marriage, or other unavoidable causes. 
(Civil Code. Art. 753 & 784.) In both these cases, there 
must always be an heir to succeed him in the headship of 
the house ; for nobody but a person who has founded a new 
house may abolish it, as the abolition of a house would bring 
with it, in other cases, the extinction of the worship of the 
ancestors. (Civil Code. Art. 762 & 763.) 

ii. Loss of Nationality. 

The house system is a national imtitution, and foreigners 
not being considered as belonging to any house, the house- 
headship necessarily comes to an end when a house-head 
loses his nationality, by naturalization or other causes men- 
tioned in the Law of Nationality (Law No. 66. 1899); just 
as a 'Roma^n pa/ frfainilias lost \vv~, patria potcstas on account 
of the loss of citizenship by undergoing media capitis diiii- 

iii. The Marriage of a Female House-head. 

According to Art. 736 of the Civil Code, if a female house- 
head marries, the husband enters the house of his wife, in- 
stead of the wife's entering the husband's house according to 
the usual rule, and at once becomes the house-head, unless 
the parties concerned expressed a contrary intention at the 
time of marriage. Thus successsion inter I'ivos to the house- 
headship occurs in case of the marriage of a female house- 

iv. The Divorce of a Husband who has married a Female House- 


As the husband entered the house and has become the 
house-head in consequence of the marriagCj he leaves the 
house by divorce, and at the same time loses the house- 
headship. Thus divorce in this case becomes a cause of 
succession inter vivos. 
V. Invalidation of Marriage or Adoption. 

If a man who married a female house-head, or an adopted 
son or daughter has become a house-head, and the marriage 
or the adoption is invalidated for one of the causes mentioned 
in the Code, the husband or the adopted child leaves the house 
and the house-headship is lost. In this case, as the invalida- 
tion has no retrospective effect, the preceding house-head, 
though alive, such as the wife or the abdicated adoptive 
father, does not recover the house-headship as if there had 
been no marriage or adoption, but the rules of succession 
apply just as in the case of death. 

The above enumeration of the causes will show that succes- 
sion infer vivos, which is not usually found in modern laws, occurs 
very frequently under the present Japanese law. 

XIX. Conclusion. 

I hope I have been able to show, to some extent at least, 
that the new Japanese Civil Code furnishes valuable materials for 
students of historical and comparative jurisprudence. The Codi- 
fication was the result of the great political and social revolutions 
which took place within a comparatively short period. The 
Code embodies in itself archaic and modern elements on the 
one hand, and Eastern and Western elements on the other. 
Within the past thirty years, Japanese law has passed from the 
Chinese Family of Law to the European Family ; the notion of 
right was introduced ; woman's position was raised from a condi- 

tion of total subjection to one of equality with man, as far as 'pri- 
vate rights are concerned ; the status of foreigners advanced from 
the stage of enmity to that of equality with citizens ; the family 
system was greatly modified ; the separate property of house- 
members began to be recognized ; and property succession has 
come to exist side by side with the succession of house-head- 

Comparing the new Japanese Civil Code with Western 
Codes, we observe great similarity between them in the first 
three Books relating to General Provisions, Real Rights and 
Obligations respectively, but great difference in the last two, 
which relate to Family and Succession. Of the first three 
Books, the law of obligations may be said to be entirely Occident- 
al. That part of law may indeed be said to be in a sense cos- 
mopolitan, the laws of different countries exhibiting a relatively 
small amount of variation in this regard. The law of obhgations, 
therefore, has the greatest propagating capacity and is generally 
first received in other countries. Next comes the law relating to 
movables. But land is usually so bound up with the public policy 
and local conditions of a country, that we usually find much di- 
vergence in the laws relating to immovables in different countries. 
The laws relating to Succession and Family, depending, as they 
do, upon the national character, religion, history, traditions and 
customs, show the least capacity for assimilation. So, the usnal 
order of assimilation, or reception of foreign laws is, (l) Law of 
Obligation (2) Law of Movables, (3) Law of Immovables, (4) Law 
of Succession and Family. 

I have not touched upon those parts of the Civil Code, which 
relate to Obhgations and Rights in rem, because the rules relating 
to these parts are mostly derived from Western jurisprudence and 
will present little that is novel to a European or American audience. 
I have confined my remarks, therefore, to thoss parts in which the 
indigenous element is usually most persistent. I have shown 


that even in these, we have made great reforms since the opening 
of the country to foreign intercourse. During the last thirty 
years we have been trying to adopt from Western civilization 
whatever seemed to us best fitted for the progress of the country. 
We now possess a Civil Code based upon the most advanced 
principles of Western jurisprudence. But the Code is only a 
framework or skeleton of law. What supplies flesh, blood and 
sinews to it is the integrity and learning of the Bench and the 
Bar, and the law-abiding habit of the people. But, above all, the 
fountain-head of legal improvement is legal science. Law is na- 
tional or territorial, but the science of law is universal, and is not 
confined within the boimds of any state. We have profited in the 
past by the work of scientific jurists of the West, and we must 
look, in future, to the mutual assistance and co-operation of tlie 
scientific brotherhood of the world.